UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


WARSHAWSKY & CO

v.

NLRB


98-1277a

D.C. Cir. 1999


*	*	*


Silberman, Circuit Judge: Warshawsky & Company peti- tions for review
of an order of the National Labor Relations  Board dismissing a
secondary boycott complaint filed against  Ironworkers Local 386. We
grant the petition.


I.


Warshawsky (the Company) sells automobile parts and  accessories and is
currently constructing a warehouse and  mail order facility in
LaSalle, Illinois. The Company retained  G.A. Johnson & Sons, Inc. as
its general contractor for the  project. Johnson in turn subcontracted
with various other  companies, all of whom maintained collective
bargaining con- tracts with the building trade unions that represent
their  employees. Throughout the period relevant to this case, 
Johnson and the subcontractors worked at the LaSalle site  from
approximately 7 a.m. to 3:30 p.m. every weekday, and  occasionally on
Saturday. In March of 1997, Warshawsky  retained Automotion, Inc. to
install rack and conveyor sys- tems at the site. In response, Iron
Workers Local 386, which  represents Automotion's employees and had no
dispute with  Johnson or any of the subcontractors, engaged in "area 
standards" picketing of Automotion at the construction site on  March
5. The union stopped later that day after being told  that Automotion
was not yet working at the site. One week  later, Warshawsky's Vice
President of Human Resources sent  the union's business agent a letter
stating that a "reserve  gate" had been established at the site for


that any subsequent picketing of Automotion should be con- ducted only
when Automotion was working on the site: Mon- day through Friday from
4 p.m. to 6 a.m., and all day Sunday.  Automotion began work at the
site according to this schedule  on the same day. The next morning, at
around 6:40 a.m., various union  agents stationed themselves in close
proximity to the LaSalle  site on a road that was used primarily by
persons going to  and from the site. The site itself was not open to
members of  the general public. As employees of Johnson and its
subcon- tractors approached the construction site in their
automobiles,  the union agents distributed the following handbill:1


AUTOMOTION, INC. IS DESTROYING THE STANDARD OF WAGES FOR HARD-WORKING
UNION MEMBERS


AUTOMOTION, INC. PAYS SUBSTANDARD WAGES AND FRINGE BENEFITS. IGNORING
THE AREA STANDARDS THREATENS THE EFFORTS AND SACRIFICES OF ALL UNION
MEMBERS. 


__________

n 


__________

n 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


The union agents also spoke briefly with the employees to  whom they
gave the handbill, although we have no direct  evidence of what was
said.


This activity lasted for about four hours, and resulted in  the
employees of Johnson and its subcontractors refusing to  enter the
site and refusing to perform services for their  employers. The union
agents engaged in the same conduct at  the same times on four of the
next six days, resulting each  


__________

n 1 The actual handbill is in an appendix to our opinion. As will be 
apparent, the caveat at the bottom is in very small print indeed.


day in employees of Johnson and its subcontractors refusing  to work.
None of that conduct occurred while Automotion, or  any of its
employees, suppliers, or subcontractors, were work- ing at the site.


The General Counsel, responding to an unfair labor prac- tice charge
filed by Warshawsky, issued a complaint alleging  that the union's
conduct violated s 8(b)(4)(i)(B) and (ii)(B) of  the National Labor
Relations Act.2 The union's answer ad- mitted that its agents
handbilled and spoke to employees of  Johnson and its subcontractors,
but characterized that con- duct as a "lawful informational picket."
The parties subse- quently stipulated to the facts as set forth above
and agreed  that those facts would serve as the complete record of the
 case to be submitted to the ALJ for his decision without a  hearing.
The ALJ granted the union's motion to amend its  answer two days
before briefs were to be filed, which War- shawsky but not the General
Counsel opposed, to substitute 




__________

n 2 Those sections provide that it is an unfair labor practice for a 
labor organization or its agents


(i) to engage in, or to induce or encourage any individual  employed by
any person engaged in commerce or in an indus- try affecting commerce
to engage in, a strike or a refusal in the  course of his employment
to use, manufacture, process, trans- port, or otherwise handle or work
on any goods, articles,  materials, or commodities or to perform any
services; or (ii) to  threaten, coerce, or restrain any person engaged
in commerce  or in an industry affecting commerce, where in either
case an  object thereof is--  .... 


(B) forcing or requiring any person to cease using, selling,  handling,
transporting, or otherwise dealing in the products of  any other
producer, processor, or manufacturer, or to cease  doing business with
any other person, or forcing or requiring  any other employer to
recognize or bargain with a labor  organization as the representative
of his employees unless such  labor organization has been certified as
the representative of  such employees under the provisions of section
159 of this title  ...


29 U.S.C. s 158(b)(4)(i)(B), (ii)(B) (1994) (emphasis added).


the word "handbilling" for "picket."3


The ALJ determined that because there was no direct  testimony as to
what was said by the union agents to the  neutral employees and
nothing else in the record supported  an inference that the union
"induced" or "encouraged" the  work stoppage, the General Counsel had
not met his burden  of proof. The ALJ's decision appears to have been
strongly  influenced by his conclusion that the handbilling engaged in
 by the union--as opposed to picketing--was "pure expres- sive"
activity and is therefore entitled to some measure of  First Amendment
protection. Although he described the  handbill as strident in tone,
according to him it did no more  than truthfully advise members of the
"public" (i.e., the  neutral employees of Johnson and its
subcontractors) of  Automotion's wages and benefits. He accordingly
discounted  the suspicious timing of the handbilling--that it took
place  when Automotion's employees were not present. And he also 
concluded that the apparent connection between the handbill- ing and
the work stoppage was insufficent as a matter of law  to prove


The Board affirmed the ALJ's findings and conclusions and  adopted the
order dismissing the complaint. See Iron Work- ers Local 386
(Warshawsky & Co.), 325 N.L.R.B. No. 141  (May 14, 1998). Chairman
Gould concurred separately. He  thought that the case was a close one;
the evidence arguably  could support an inference that the union "was
indeed making  an appeal, through a careful wink and a nod, for the
employ- ees to engage in a work stoppage." He noted particularly the 
timing of the handbilling when the only recipients would be 




__________

n 3 Warshawsky argues that the ALJ erred in granting the  motion
because the last-minute change from "picket" to "handbill- ing"
prejudiced Warshawsky, and that even if the motion were  properly
granted, the ALJ erroneously failed to consider the origi- nal answer
as evidence that the union's conduct constituted picket- ing. Because
we conclude that the union's conduct violated the  statute even
accepting the amended answer, and without even  considering the
original answer as evidence of picketing, we need  not address these


neutral employees, the text of the handbill, and the resulting  work
stoppage. But based on Board precedent limiting the  "nod, wink, and a
smile" theory, see Building & Constr.  Trades Council of Tampa (Tampa
Sand & Material Co.), 132  N.L.R.B. 1564, 1565-66 (1961), he concluded
that the facts of  the instant case, involving a handbill with a
disclaimer, to- gether with an absence of evidence as to the content
of the  conversations between the union and the employees, did not 
satisfy the General Counsel's burden of proving unlawful  inducement
or encouragement.


II.


As noted, the ALJ (whose opinion the Board adopted)  relied
significantly on the First Amendment in concluding  that the union did
not induce or encourage the employees of  the neutral employers to
engage in a secondary strike. In  the ALJ's words, the looming
constitutional issue meant that  "analysis must proceed with care."
The ALJ's reasoning is  not all that clear to us; it is as if the
First Amendment acts  as a deus ex machina directing his factfinding.4
He presum- ably thought that to prohibit a union from engaging in
"area  standards" handbilling of neutral employees might violate the 
union's First Amendment rights, and therefore the constitu- tional
avoidance canon suggests that the words "induce or  encourage" in s
8(b)(4)(i) should be interpreted, and applied,  narrowly so as not to
proscribe the handbilling involved in  this case. We think the First
Amendment is not at all  implicated and once it is put aside, the
Board's finding can be  judged in accordance with the standard




__________

n 4 Our dissenting colleague is no more forthcoming as to just  how the
First Amendment affects her analysis. It would appear  that she is of
the view that circumstantial evidence should be  thought less
probative than direct evidence in this setting, but she  does not
explain why. Cf. Crawford-El v. Britton, 93 F.3d 813, 818  (D.C. Cir.
1996) (en banc) ("[T]he distinction between direct and  circumstantial
evidence has no direct correlation with the strength  of the
plaintiff's case."), rev'd on other grounds, 118 S. Ct. 1584,  1595


The Supreme Court has emphatically said that "[t]he prohi- bition of
inducement or encouragement of secondary pressure  by s 8(b)(4)[i]
carries no unconstitutional abridgment of free  speech," International
Brotherhood of Elec. Workers, Local  501 v. NLRB, 341 U.S. 694, 705
(1951). And in Electrical  Workers, the Court also recognized that
"[t]he words induce  or encourage are broad enough to include in them
every form  of influence and persuasion." Id. at 701-02 (emphasis add-
ed). It follows that the First Amendment does not protect 
communications directed at--and only at--the neutral em- ployees
merely because the form of communications is hand- billing and
conversations.5 Indeed, the Board's brief con- cedes that a violation
of the Act would have been established  "if the handbilling had
[explicitly] requested neutral employ- ees to cease work, or if the
record showed that the union had  orally induced or encouraged such a


The Board (both the ALJ and the Board's brief) relies  heavily on the
Supreme Court's decision in Edward J. DeBar- tolo Corp. v. Florida
Gulf Coast Building & Construction  Trades Council, 485 U.S. 568
(1988), in which the Court did  pivot on the First Amendment--using
the canon of constitu- tional avoidance--to construe the secondary
boycott provi- sions of the Act not to reach peaceful handbilling
directed to  consumers at a shopping mall. There the union's primary 
dispute was with a construction company retained to build a 
department store in the mall. See id. at 570. The handbill  asked
customers not to shop at any stores in the mall until  the mall owner
(DeBartolo) promised that all of its tenants  would use only
contractors who pay fair wages, and made  clear that the union was
seeking only a consumer boycott.  The Board found that the handbilling
"coerced" the mall  tenants, in the words of s 8(b)(4)(ii)(B), by
putting economic  pressure on them through the appeal to consumers.
The  Supreme Court rejected the Board's interpretation of  s
8(b)(4)(ii)(B) to reach such consumer directed handbilling in 




__________

n 5 The dissent, post at 3, misconstrues this rather unexceptiona- ble
statement.


part to avoid the serious constitutional question that would  arise.


We think DeBartolo, and the constitutional issue the  Board's statutory
interpretation would have presented there,  is fundamentally different
because, as the Supreme Court  observed, the mall's potential
customers were being urged "to  follow a wholly legal course of
action, namely, not to patron- ize the retailers doing business in the
mall." Id. at 575  (emphasis added). The issue in the case was whether
that  sort of appeal to the consumers--which obviously implicates  the
First Amendment--could be thought to threaten, coerce,  or restrain
the mall tenants to cease doing business with  another (DeBartolo)
within the meaning of s 8(b)(4)(ii)(B).  By contrast, the conduct
sought by a union that directly  induces or encourages a secondary
strike is itself unlawful  under s 8(b)(4)(i). See 29 U.S.C. s
158(b)(4)(i)(B) (providing  that it is an unfair labor practice for a
labor organization or  its agents "to engage in ... a strike ... [the
object of which  is] forcing or requiring any person ... to cease
doing busi- ness with any other person"). The obvious implication of 
DeBartolo, consistent with the Court's prior precedent, is that  an
appeal limited to employees of a neutral employer which  reasonably
could be found to be an inducement to engage in a  secondary strike is
quite another matter; it does not raise  any constitutional


The ALJ, again drawing on DeBartolo, suggested a related  basis for his
decision. DeBartolo involved the construction of  the so-called
publicity proviso of 8(b)(4), which states that  nothing in s


shall be construed to prohibit publicity, other than pick- eting, for
the purpose of truthfully advising the public,  including consumers
and members of a labor organiza- tion, that a product or products are
produced by an  employer with whom the labor organization has a pri-
mary dispute and are distributed by another employer,  as long as such
publicity does not have an effect of 


inducing any individual employed by any person other  than the primary
employer in the course of his employ- ment to refuse to pick up,
deliver, or transport any  goods, or not to perform any services, at
the establish- ment of the employer engaged in such distribution.


29 U.S.C. s 158(b)(4) (1994). The Board in DeBartolo had  argued the
proviso was an exception to the secondary boycott  provisions, and
therefore if a union was engaging in public  handbilling, but
handbilling that did not qualify under the  proviso because it was not
calling attention to a "distributor"  of goods with whom a union has a
labor dispute, it was  implicitly banned (as coercive). The Court
rejected that  construction--in part, as we noted, for constitutional
rea- sons--pointing out that the proviso was not an exception to a 
broad handbilling ban, but rather a clarification as to the  meaning
of the section's bar on coercion. See DeBartolo, 485  U.S. at 582.


The ALJ, keying on the Supreme Court's description of the  proviso as
serving a clarification function, pointed to the  language "public,
including consumers and members of a  labor organization," 29 U.S.C. s
158(b)(4) (emphasis added),  and reasoned that handbilling appeals to
union members are  entitled to the same constitutional protection as
those direct- ed to consumers. They are, after all, as Congress
recognized,  both parts of the public. Therefore the constitutional 
grounds for construing the handbilling restriction narrowly as  it
relates to consumer handbilling apply equally to handbilling  directed
at union members.6 We think that reasoning is  flawed. It ignores the
Supreme Court's cases which draw a  distinction between urging
consumers to engage in a lawful  boycott and inducing union members to
engage in an unlawful  secondary strike.


* * * *


We come then to the Board's finding that the union did not  "induce"
the neutral employees to stop work. Petitioner 




__________

n 6 The ALJ thought the same holds true (as in this case) for a 
union's handbilling of members of a different labor organization.


argues that the Board's finding is not supported by substan- tial
evidence, which is another way of saying that no reason- able
factfinder could have made such a finding. See Allen- town Mack Sales
& Serv. v. NLRB, 118 S. Ct. 818, 822 (1998).  This is not a
credibility case; there was no testimony. Nor  did the Board employ
any presumptions, so we need not  consider whether such would have
been reasonable. See id.  at 828. The case turns only on the
reasonableness of the  inferences the Board did, and did not draw,
from the raw  stipulated facts. And "[w]hen the Board purports to be 
engaged in simple factfinding, unconstrained by substantive 
presumptions or evidentiary rules of exclusion, it is not free  to
prescribe what inferences from the evidence it will accept  and
reject, but must draw all those inferences that the  evidence fairly


We think that the evidence does "fairly demand" the infer- ence that
the union sought to induce the neutral employees to  walk off the job
site. The handbills themselves, the time,  place, and manner of their
distribution, the simultaneous  conversations between the union agents
and the neutral em- ployees, and the subsequent response of those
employees all  combine to paint only one plausible picture. The ALJ
unrea- sonably took each piece of evidence, analyzed it separately--
not even accurately in our view--and concluded that no one  piece
sufficed, never asking whether the totality of facts  pointed in only
one direction.


To start with the handbill, the union argued that it specifi- cally
stated that "we are appealing only to the general public.  We are not
seeking any person to cease work or to stop  making deliveries." But
that caveat is contained in only very  small print at the bottom of
the handbill. The Board has not  in the past credited similar
disclaimers in the face of circum- stances suggesting that the
disclaimer is merely a legal cover.  See National Ass'n of Broad.
Employees, Local 31, 237  N.L.R.B. 1370, 1376 (1978) (concluding that
purported dis- claimer at bottom of handbill was a "self-serving
disavowal"  given the manner in which the handbill was distributed), 
enforced, 631 F.2d 944 (D.C. Cir. 1980); see also Catalytic,  Inc. v.
Monmouth & Ocean County Building Trades Council, 


829 F.2d 430, 432, 435 (3d Cir. 1987) (dismissing disclaimer on 
handbill virtually identical to disclaimer at issue here as a 
"carefully vague and legalistic statement" whose tone may  actually
have sent a signal to the neutral employees to cease  work); cf.
International Brotherhood of Elec. Workers, Local  453 (Southern Sun
Elec. Corp.), 252 N.L.R.B. 719, 723 (1980)  (stating that union's
self-serving disclaimer of picketing for  recognitional purposes is
not determinative of whether union  was engaged in lawful picket).


As the ALJ put it, the main language of the handbill  contained a
strident attack on Automotion's substandard  wages and, most
significantly, the lugubrious prediction that  "Ignoring the Area
Standards Threatens the Efforts And  Sacrifices Of All Union Members"
(emphasis added), which  clearly tells the recipients of the handbill
that they should  regard this matter as one in which they as union
members  have a stake. And being so informed there is only one 
possible action they can take that will contribute to the cause.


Indeed, Congress itself indicated that this sort of handbill  would be
at least evidence of inducement, if not necessarily  conclusive
evidence. The publicity proviso assumes that  handbills, or like
publicity, advising members of a labor  organization that a secondary
employer is distributing prod- ucts produced by an employer with whom
the union has a  primary dispute can have the "effect of inducing" a
secondary  employee not to perform services. 29 U.S.C. s 158(b)(4) 
(emphasis added). That the proviso does not afford a defense  in this
case7 has no bearing on whether this generic type of  handbilling is
at least evidence of inducement.


Second, the handbilling was de facto directed only at the  neutral
employees. It took place on an access road to the  construction site
(the common situs) only at times when the 




__________

n 7 The proviso cannot constitute a defense for the union in this  case
most obviously because there was a work stoppage. The ALJ  thought
that it did not apply also because the handbills did not  advise the
public that Warshawsky was distributing Automotion's  "products" (or
perhaps that Warshawsky could not even be thought  a "distributor").


employees of Johnson and its subcontractors--the neutral 
employees--were reporting for work and during which, as the  union
knew, Automotion was not working. The ALJ himself  determined at one
point in his opinion that "the stipulated  facts leave scant room for
any conclusion that the handbills  had been intended for anyone other
than persons reporting  for work at the LaSalle project" and that
"[t]here is no basis  in the stipulation that would allow even an
inference that  handbills had been actually distributed to anyone
else." War- shawsky, 325 N.L.R.B. No. 141, at 6 (emphasis added).
Inex- plicably, the ALJ later drew precisely that forbidden infer-
ence, remarking that nothing in the evidence ruled out the 
possibility that the union handbilled non-employees who may  have
tried to enter the construction site (a mystery food  vendor or some
construction-site tourists?). See id. at 9.  Based on the ALJ's own
initial finding, which seems unassail- able, we do not see how his


Then there are the conversations between the union agents  and the
employees. The ALJ was apparently under the  impression that because
there is no testimony as to the  content of those conversations, the
fact that they took place is  of no moment or significance. But we
think that conclusion  is, as an evidentiary matter, ridiculous. It
may well be that  those conversations, standing alone, would be of
little rele- vance--but they did not stand alone. A reasonable
factfinder  would have evaluated the existence of the conversations in
 light of the evidence already set forth: a handbill distributed 
exclusively to the very employees who later ceased work and  which
calls attention to the efforts and sacrifices of all union  members.
In such a case, the mere fact of a conversation  between the alleged
inducers and those allegedly being in- duced can speak volumes. See,
e.g., International Ass'n of  Bridge, Structural & Ornamental Iron
Workers, Local No.  433 v. NLRB, 598 F.2d 1154, 1159-60 (9th Cir.
1979) (enforc- ing Board's order finding unlawful inducement in part
based  on conversations at neutral employer's office gate between 
union agent and neutral employees who failed to report for  work later
that day, even though there was no testimony 


regarding the content of the conversations). We also think  the Board's
and the union's reliance on precedent holding a  union not to have
violated the Act based on conversations  between a union and neutral
employees, see, e.g., Carpenters  Local 316 (E & E Dev. Co.), 247
N.L.R.B. 1247, 1248-49  (1980); Gould, Inc., 238 N.L.R.B. 618, 622
(1978), enforced,  638 F.2d 159, 163 n.2 (10th Cir. 1980); Tampa Sand,
132  N.L.R.B. at 1565-66, is misplaced. In each of those cases,  the
Board focused on testimony that the union officials specif- ically
told the neutral employees that each employee's deci- sion whether or
not to walk off the job was his or her own to  make. It is precisely
the absence of such evidence here-- neutralizing, as it were, any
inference of inducement--that  renders the fact of the conversations


Moreover, the union agents who talked to the neutral  unionized
employees are particularly within the control of the  union, a fact
which in similar circumstances has led the Board  to draw an adverse
inference against the union for failing to  produce evidence about the
content of conversations involving  union members. See Ironworkers
Dist. Council of the Pacific  Northwest (Hoffman Constr. Co.), 292
N.L.R.B. 562, 578  (1989); Carpenters Local 316 (Thornhill Constr.),
283  N.L.R.B. 81, 84 (1987); Local 3, Int'l Brotherhood of Elec. 
Workers (Hunts Point Elec. Wiring Serv., Inc.), 271 N.L.R.B.  1580,
1585 & n.6, 1586 (1984); see also International Union,  United Auto.,
Aerospace & Agric. Implement Workers of Am.  v. NLRB, 459 F.2d 1329,
1335-1342 (D.C. Cir. 1972). The  Board and the union's protest that
the General Counsel had  the burden of proof and is therefore to blame
for failing to  produce this evidence strikes us as flatly
inconsistent with  this principle. A reasonable factfinder must ask,
as do we:  What save for inducing or encouraging words could the union
 agents possibly have said to the recipients of the handbills?  "Have
a nice day"? "How 'bout them Cubs?"? Any "non- inducement" words would
be inconsistent with the setting,  and to suppose the union agents
uttered them would be sheer  speculation. By contrast, the inference
that the union orally  induced the employees to cease work has, as we
have shown,  a substantial evidentiary base.


We come last to the actual work stoppage that occurred  after the
handbilling and conversations. Here again, the ALJ  reasoned that,
under Board precedent, a work stoppage alone  is not sufficient proof
of inducement. See, e.g., Gould, 238  N.L.R.B. at 622-23; Teamsters,
Local Union No. 688 (Levitz  Furniture Co.), 205 N.L.R.B. 1131,
1132-33 (1973); Tampa  Sand, 132 N.L.R.B. at 1568; cf. United Scenic
Artists, Local  829 v. NLRB, 762 F.2d 1027, 1033 (D.C. Cir. 1985)
(union's  intent, and not the effect of its actions, is the critical
aspect of  finding an unlawful secondary "object"). Chairman Gould 
made the same point in concluding, despite his misgivings,  that the
union did not violate the Act. However correct this  proposition is,
it certainly cannot be taken to mean, as the  ALJ implied, that the
fact of a work stoppage has no eviden- tiary value in proving a case
of inducement. To the contrary,  the Board has found that a union's
handbilling constituted  unlawful inducement in part because of its
effect in producing  a work stoppage, see International Ass'n of
Bridge, Sructural  & Ornamental Iron Workers, Local No. 433 (R.F.
Erection),  233 N.L.R.B. 283, 287 (1977), enforcement granted in part 
and denied in part, 598 F.2d 1154 (9th Cir. 1979); see also 
Catalytic, 829 F.2d at 435 ("The simple cause-and-effect of  the
appearance of the leafletters and work stoppages elo- quently
testified to the purpose of the enterprise."), and has  also relied on
the absence of a work stoppage as evidence that  a union did not
engage in unlawful inducement, see, e.g.,  United Scenic Artists,
Local 829 (Theatre Techniques, Inc.),  243 N.L.R.B. 27, 28 (1979),
rev'd on other grounds, 655 F.2d  1267 (D.C. Cir. 1981); Levitz
Furniture, 205 N.L.R.B. at 1133  (refusing to presume from "one
isolated instance when a  delivery was not made" that the union's




__________

n 8 The Board has even suggested (though admittedly in dicta) in 
distinguishing handbilling from picketing that handbilling is only 
"lawful" when unaccompanied by a work stoppage. See Local 917, 
International Brotherhood of Teamsters (Industry City Assocs.),  307
N.L.R.B. 1419, 1419 n.3 (1992) (citing Hospital & Serv. Employ- ees
Union, Local 399 (Delta Air Lines, Inc.), 293 N.L.R.B. 602, 603 


these prior cases is consistent with our view of what a  reasonable
factfinder would have been obliged to do in this  case: to consider a
work stoppage as probative evidence of  inducement, even if not
sufficient evidence taken alone.


We suppose it is possible to infer that the neutral employ- ees
"spontaneously" walked off the job after receiving the  handbills and
talking with the union agents. The real ques- tion is whether it is a
reasonable inference to draw.9 We  think not. As we observed, the ALJ
employed a kind of  "divide and conquer" evidentiary strategy,
dissecting the  General Counsel's case into evidentiary fragments that
stand- ing alone would be insufficient to prove inducement, but 
neglecting to consider what we think is the overpowering  evidentiary
force of those parts put together. For the Board  to focus on
evidentiary fragments and to ignore the aggregate  weight of the
evidence is no more permissible than ignoring  evidence that
contradicts its conclusion. See Universal Cam- era Corp. v. NLRB, 340


* * * *


We have no difficulty, reviewing the whole record, in  concluding the
Board's finding is defective; it lacks substan- tial evidence.





__________

n 9 We, unlike the dissent, do not think it matters that the 
stipulated facts did not specify whether all or only some of the 
employees stopped work or the exact length of the conversations  with
the union agents. Nor, for that matter, did the ALJ.


A P P E N D I X


AUTOMOTION, INC. IS DESTROYING THE STANDARD OF WAGES FOR HARD-WORKING
UNION MEMBERS


AUTOMOTION, INC. PAYS SUBSTANDARD WAGES AND FRINGE BENEFITS.


IGNORING THE AREA STANDARD THREATENS THE EFFORTS AND SACRIFICES OF ALL
UNION MEMBERS.




__________

n 


__________

n 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


Wald, Circuit Judge, dissenting: In my view, the majority  goes too far
afield from the record and established restraints  on our appellate
review powers in order to overturn the  Board and find that the union
committed a violation of section  8(b)(4). An opinion upholding the
decision of the Board in  this case, which I support, on the other
hand would have had  only a limited impact; at most, it would have
sent a message  to future companies that they ought not agree to be
bound by  too sparse factual records. Instead, the majority issues a 
surprisingly broad-based opinion which reverses the Board,  finds a
union in violation of federal labor law,1 and sets forth  new
constitutional law restricting the reach and protection of  the First


The relevant facts of this case are easily summarized.  Warshawsky &
Company ("the Company") is engaged in the  warehousing and sale of
auto parts and accessories. In 1997,  the Company decided to build a
warehouse and mail order  facility in LaSalle, Illinois. The Company
hired a general  contractor who, in turn, hired various
subcontractors, each of  which maintained collective bargaining
agreements with vari- ous unions representing employees working on the
construc- tion site ("construction employees"). These employees 
worked at the construction site Monday through Friday, 7  a.m. to 3:30
p.m. and on occasional Saturdays as well.


In March 1997, the Company directly retained Automotion  Inc.
("Automotion") to install certain rack and conveyor sys- tems at the
construction site. Shortly thereafter, Ironwork- ers Local 386
("Union"), which had no labor dispute with  either the general
contractor or any of the subcontractors, 




__________

n 1 In so finding, the majority does not take seriously enough the 
proposition that unions, as well as individuals, are innocent until 
proven guilty, and that courts must therefore be cautious in con-
cluding that a union has violated federal labor law. See NLRB v. 
Ironworkers Local 433, 850 F.2d 551, 555 (9th Cir. 1988) ("What is  at
issue is a finding that [the union] violated federal law. This is a 
serious conclusion, one we do not lightly reach.").


engaged in area standards picketing against Automotion.  The Union
discontinued this picketing after being informed  that Automotion was
not yet working on the site. Subse- quently, an agent of the Company
sent the Union a letter  stating that Automotion employees would be
scheduled to  work on the site Monday through Friday from 4 p.m. to 6 
a.m. and all day Sunday. The letter requested that any  future
picketing of Automotion be conducted only when Auto- motion employees
were on site.


On March 13, 1997, at around 6:40 a.m., various agents of  the Union
were stationed in close proximity to the entrance of  the construction
site. During about a four hour period, the  Union agents distributed
copies of a handbill to construction  employees as they approached the
construction site. A copy  of the handbill appears as an appendix to
the majority's  opinion. Union agents distributed the same handbill at
the  same location and at approximately the same time on March  14,
17, 18, and 19. Employees of Automotion were not at the  site on any
of these occasions. Certain construction employ- ees (number unknown,
see below) refused to enter the con- struction site on each of the
days on which the Union  handbilled.


On March 13, 1997, the Company filed an unfair labor  practice charge
alleging illegal secondary activity on the part  of the Union. On
March 25, 1997, the Regional Director  issued a complaint charging
that the Union had violated  section 8(b)(4)(i) and (ii)(B) of the
National Labor Relations  Act, which, in relevant part, makes it
unlawful for a union to  "induce or encourage" any individual employed
by a neutral  employer (i.e., one with whom the union has no primary
labor  dispute) to engage in a work stoppage, where the union's 
object is to force the neutral to cease doing business with an 
employer with whom the union does have a primary dispute.


Before the Administrative Law Judge ("ALJ"), the parties  presented a
joint motion accepting a stipulation of facts and  agreeing to waive a
hearing. The stipulation contained a  copy of the handbill distributed
by the Union. The stipula- tion also provided that "various" agents of
the Union were 


stationed on a road used primarily by individuals going to and  from
the construction site. The stipulation provided that the  Union agents
gave copies of the handbill to individuals enter- ing the site and
that the agents "briefly spoke" with these  individuals. Finally, the
stipulation provided that "the indi- viduals" on the first day, and
then "various individuals" on  subsequent days refused to enter the
construction site and  perform work for their respective employers.
Based on the  stipulation of facts, which constituted the entire
record, and  on the briefs, the ALJ dismissed the complaint against
the  Union, concluding that "a preponderance of the ... evidence 
fails to establish that the failure of some of [the construction] 
employees to report for work ... had been other than a  spontaneous
reaction by those employees to the [Union's]  lawful actions of
publicizing, other than through picketing or  through conduct
tantamount to picketing, undisputed facts  about Autom[o]tion's wages
and benefits." Iron Workers  Local 386 (Warshawsky & Co.), 325
N.L.R.B. No. 141 (May  14, 1998) at 4-5. The Board subsequently
adopted the opin- ion of the ALJ, with Chairman Gould writing a
concurring  opinion. The majority opinion today reverses the Board and
 insists that it lacked "substantial evidence" for its conclusion 
that a violation of section 8(b)(4) had not been proven. I  dissent


First, in order to reach its result, the majority creates new 
constitutional law restricting the scope and protection of the  First
Amendment. In taking the ALJ to task for considering  the First
Amendment in his analysis of whether the Union  violated section
8(b)(4), the majority opines that "the First  Amendment does not
protect communications directed at-- and only at-- ... neutral
employees...." Majority opinion  ("Maj. op.") at 7. This novel
proposition, I believe, is simply  wrong.


In his opinion, the ALJ correctly noted that in order to  establish a
violation of section 8(b)(4)(i)(B) and (ii)(B), the  General Counsel
had to prove by a preponderance of the  evidence both that the Union
induced or encouraged individu- als employed by the Company to engage
in a work stoppage  and that the Union had the object thereby of
forcing the 


Company to cease dealing with Automotion. The ALJ was  guided in his
attempt to discern the intent and motive of the  Union by the Supreme
Court's decision in Edward J. DeBar- tolo Corp. v. Florida Gulf Coast
Bldg. and Constr. Trades  Council, 485 U.S. 568 (1988) (DeBartolo


DeBartolo II is a case where the Supreme Court, under the  canon of
constitutional avoidance, construed section 8(b)(4) as  not
prohibiting the distribution of handbills to consumers  "press[ing]
the benefits of unionism to the community and the  dangers of
inadequate wages to the economy and the stan- dard of living of the
populace."2 Id. at 576. In so holding,  the Supreme Court emphasized
the difference, constitutional- ly speaking, between pickets and
handbills, the former consti- tuting a mixture of conduct and
communication and the latter  constituting pure expressive speech:


[P]icketing is a "mixture of conduct and communication"  and the
conduct element "often provides the most per- suasive deterrent to
third persons about to enter a  business establishment." Handbills
containing the same  message ... are "much less effective than labor
picket- ing" because they "depend entirely on the persuasive  force of


Id. at 580 (quoting NLRB v. Retail Store Employees (Safeco),  447 U.S.
607, 619 (1980) (Stevens, J., concurring)). In reach- ing its decision
in DeBartolo II, the Court defined the so- called "publicity proviso"
to section 8(b)(4) as constituting a  clarification of section
8(b)(4). The publicity proviso provides,  inter alia, that section
8(b)(4) did not prohibit "publicity,  other than picketing, for the
purpose of truthfully advising  the public, including consumers and
members of a labor  organization, that a product or products are
produced by an  employer with whom the labor organization has a
primary  dispute and are distributed by another employer." 29 U.S.C. 
s 158(b)(4) (1994). The handbills in DeBartolo II did not fall 




__________

n 2 The handbills in DeBartolo II were distributed to patrons of a 
mall in order to protest the alleged substandard wages paid by a 
company hired by the mall owner to construct a department store 


specifically under the publicity proviso; however, the Su- preme Court,
in interpreting the proviso as a clarification of,  rather than an
exception to, section 8(b)(4), found that other  forms of handbilling
(i.e., in addition to those that fall within  the terms of the
proviso) would not necessarily be prohibited  under section 8(b)(4).


Like the handbills in DeBartolo II, the handbills in the  instant case
were not covered by the publicity proviso.3 And  while the handbills
in DeBartolo II were distributed to con- sumers at a shopping mall,
the ALJ nevertheless found the  reasoning of DeBartolo II to be
"important to the resolution  of the instant case":


[T]he fact that the [Supreme Court found the publicity]  proviso [to
be] an express "clarification," rather than an  exception, is some
indication that Congress contemplated  other, unstated, clarifications
which would inform resolu- tion of issues arising under Section
8(b)(4) of the Act's  stated prohibitions. Second, such unstated
clarifications  arise in the context of the publicity proviso's ...




__________

n 3 The handbilling in this case did not fall under the publicity 
proviso because, on its face, the proviso deals only with handbilling 
that does not result in a work stoppage. Additionally, the ALJ  found
that the handbilling here did not fall under the publicity  proviso
because the handbills did not advise the public that the  Company was
distributing Automotion's products. The full text of  the proviso is,
as follows:


[Nothing in section 8(b)(4)] shall be construed to prohibit  publicity,
other than picketing, for the purpose of truthfully  advising the
public, including consumers and members of a  labor organization, that
a product or products are produced by  an employer with whom the labor
organization has a primary  dispute and are distributed by another
employer, as long as  such publicity does not have an effect of
inducing any individual  employed by any person other than the primary
employer in  the course of his employment to refuse to pick up,
deliver, or  transport any goods, or not to perform any services, at
the  establishment of the employer engaged in such distribution.


29 U.S.C. s 158(b)(4) (1994).


tion of "the public" which embraces both "consumers and  members of a
labor organization[.]" Inasmuch as the  proviso serves as a
clarification, rather than an exception,  the reach of the prohibition
which it interprets, explains,  and clarifies must, of necessity, take
into account publici- ty of disputes which is directed to members of
labor  organizations, without too readily concluding that such 
publicity constitutes unlawful inducement or encourage- ment.


Warshawsky & Co., 325 N.L.R.B. No. 141, at 6 (emphasis  added).


Of course, as the ALJ acknowledged, handbilling does not  enjoy
unfettered exemption under section 8(b)(4), in that  "[e]specially in
the context of common situs situations, labor  organizations must make
reasonable efforts to minimize the  impact of their messages on
neutral employers and their  employees." Id. at 7. However, he
continued, this does not  mean that "those labor organizations [in the
context of a  common situs] are ... required to abandon altogether
com- munication of their messages." Id. Citing again to DeBarto- lo
II, the ALJ noted the following:


[T]he Supreme Court recognized the constitutional and  statutory
protection extended to handbill messages pro- testing failures to
satisfy area wage and fringe benefit  standards--those which "press[ ]
the benefits of unionism  to the community and the dangers of
inadequate wages  to the economy and the standard of living of the
popu- lace." [DeBartolo II,] 485 U.S. at 576. Therefore, when 
evaluating the lawfulness of [handbill] messages, even  when
disseminated to members of a labor organization at  a common situs,


Id. The ALJ's point was that the Supreme Court has  recognized the
constitutional and statutory protection of  handbills, like those in
the instant case, which press the  benefits of unionism and the
dangers of inadequate wages to  the community. The Supreme Court also
defined the publici- ty proviso as a clarification, an explanation, of
section 8(b)(4).  The publicity proviso in turn defines the public as
including 


members of labor organizations. Accordingly, the analysis of  whether a
union has violated section 8(b)(4) as a result of  communicating via
handbills with members of other labor  organizations must proceed with
some care. In other words,  one ought not too easily assume that a
union has an illegal  intent or motive when handbilling neutral
employees; a union  has a First Amendment right, even if not an
unfettered right,  to express its ideas to all members of the


Surprisingly, the majority seems to be saying that the First  Amendment
is not implicated at all when a union communi- cates solely with
neutral employees. There is no support for  this belief. The majority
jumps from the Supreme Court's  holding that the prohibition under
section 8(b)(4) of the  inducement or encouragement of a secondary
work stoppage  does not constitute an unconstitutional abridgement of
free  speech, see International Bhd. of Elec. Workers v. NLRB,  341
U.S. 694, 705 (1951), to its conclusion that any kind of  union speech
directed to neutral employees carries no First  Amendment protection.
This, in my view, puts the cart  before the horse. It is of course
true that if the General  Counsel had actually proven that a union
induced and encour- aged employees of a neutral employer to engage in
a work  stoppage with the object of forcing a neutral employer to 
cease dealing with the primary, then that union could not  complain
that its First Amendment rights had been violated.  But it does not
follow from this proposition that no communi- cation to neutral
employees is protected speech or, as the  majority implies, that the
ALJ erred in interpreting "induce"  or "encourage" narrowly in order
to avoid First Amendment  concerns. See Maj. op. at 6 ("[The ALJ]
presumably thought  that ... the constitutional avoidance canon
suggests that the  words 'induce or encourage' in s 8(b)(4) should be
interpret- ed, and applied, narrowly so as not to proscribe the
handbill- ing involved in this case. We think the First Amendment is 


The majority places great reliance, in this regard, on its  ability to
distinguish the facts of DeBartolo II from those  here. Again, without
any affirmative support that I can find,  the majority thinks it
adequate to point out that DeBartolo II 


involved handbills directed to consumers as opposed to the  handbills
here, directed to neutral employees. It reasons  that when a union
handbills consumers and they subsequently  refuse to patronize a
neutral employer, these consumers are  following a wholly legal course
of action, namely, withholding  their buying power. In contrast, it
argues, when a union  handbills neutral employees, the only course of
action open to  these employees is illegal to them under section
8(b)(4); that  is, neutral employees, when informed through a handbill
that  a primary employer pays substandard wages, can only re- spond
sympathetically by engaging in an illegal work stop- page.4 This
single-option assumption is, however, mistaken.  Members of labor
organizations--even employees of neu- trals--are people too. They also
consume. They also may be  potential future joint venturers with or
employees of the  offending company. They certainly are members of
their  communities with an interest in knowing which employers in  the
area pay substandard wages. The majority assumes that  any time a
union expresses its ideas to neutral employees,  that union has an
illegal intent under section 8(b)(4) and the  neutral employees can
only "contribute to the cause" by  engaging in an illegal work
stoppage under section 8(b)(4), an  assumption without support in this
record or in ordinary  experience and without which, the distinction
the majority  attempts to draw between DeBartolo II and the instant
case  simply dissolves. In my view, the ALJ was completely  justified
in construing section 8(b)(4) narrowly and in assess- ing the
situation with appropriate concern for the First  Amendment rights of


My second ground for dissenting is that I believe the  majority errs in
concluding that the stipulated record reason- ably compels the
conclusion that the Union had an illegal  intent and motive under
section 8(b)(4). It is settled law that  the burden of proof is on the
General Counsel to prove each  and every element of a section 8(b)(4)
violation, see Local 




__________

n 4 Indeed, the majority says, being "informed [of the message on  the
handbill] there is only one possible action [neutral employees]  can
take that will contribute to the cause." Maj. op. at 11.


Union No. 501, Int'l Bhd. of Elec. Workers v. NLRB, 756  F.2d 888, 898
n.8 (D.C. Cir. 1985) ("The general counsel and  the charging party
bear the burden of proving a secondary  boycott violation ..."), and
that courts owe substantial defer- ence to the findings of the Board,
see Laro Maintenance  Corp. v. NLRB, 56 F.3d 224, 228 (D.C. Cir. 1995)
("The  court's review of the Board's factual conclusions is highly 
deferential ...").5 The majority nevertheless reverses the  Board for
failing to draw all inferences from purely circum- stantial evidence
in favor of the party with the burden of  proof. This result is quite
unprecedented; it is akin to  reversing a jury verdict in a civil case
because the jury, based  on purely circumstantial evidence, declined
to find in favor of  the plaintiff. In reality, this case is quite
simple: the Compa- ny (and the General Counsel) made a fatal strategic
error in  waiving a hearing before the ALJ and in agreeing to be 
bound by a stipulated record that did not sufficiently support  (let
alone compel) the conclusion that the Union violated  section


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 




__________

n 5 The deference owed to the Board's findings is even greater  where,
as here, the critical question involves the intent and motive  of the
Union. As we have repeatedly warned:


The court's review of the Board's determination with respect to  motive
is even more deferential [than the court's review of  Board findings
more generally]. Motive is a question of fact  that may be inferred
from direct or circumstantial evidence.  In most cases only
circumstantial evidence of motive is likely to  be available. Drawing
such inferences from the evidence to  assess an employer's [or
union's] ... motive invokes the exper- tise of the Board, and
consequently, the court gives "substan- tial deference to inferences
the Board has drawn from the  facts," including inferences of


Laro Maintenance Corp., 56 F.3d at 229 (quoting Gold Coast  Restaurant
Corp. v. NLRB, 995 F.2d 257, 263 (D.C. Cir. 1993))  (citations
omitted).


employees. The handbill mentions nothing about the neutral  employer
(i.e., does not say that the Company had engaged in  any wrongdoing by
hiring Automotion) and, instead, contains  a specific proviso stating
that the Union was engaged in a  labor dispute with Automotion (again,
not the neutral employ- er) and that the Union was "not seeking any
person to cease  work or to stop making deliveries." Second, the
stipulation  states that "various" agents of the Union "were stationed
at  certain locations along Murphy Road ... a road used primari- ly by
individuals going to and from the La Salle facility  construction
project." From this stipulation, we know only  that Union agents
(number unknown) were stationed along a  road used primarily (but not
exclusively) by individuals enter- ing the construction project. The
stipulation also states that  the agents gave copies of the handbill
to the individuals  entering the construction project and "briefly
spoke with"  these individuals. From this, we know only that the
agents  spoke with the employees, but we have no evidence whatsoev- er
of the content of the conversations, nor do we know how  long these
conversations were; "briefly" could mean five  seconds, merely enough
time to say, "We are members of the  Iron Workers Local 386, please
read this handbill," or five  minutes, enough time to request that the
employees not  engage in a work stoppage, to request that the
employees  engage in a work stoppage, or, indeed, to talk about the
Cubs.  Finally, the stipulation states only that "the individuals" (on
 the first day) and then "various individuals" (on the subse- quent
days) refused to enter the construction project and  perform work for
their respective employers. We know from  this only that more than one
employee refused to work, but  we do not know whether the number
amounted to 10 out of  50; 50 out of 100; or 200 out of 200. The exact
number and  ratio of employees who refused to work would certainly
shed  a great deal of light on what one ought infer from the other 
facts of the case, but, alas, we have no access to that  information


The majority speaks about the need to draw "reasonable"  inferences,
see Maj. op. at 10, but then proceeds to draw  every possible
inference against the Union. For example, 


with respect to the handbill itself, the majority finds that the  legal
disclaimer on the handbill is of no evidentiary moment  because "that
caveat is contained in only very small print at  the bottom of the
handbill." Maj. op. at 10. In contrast, the  ALJ found the disclaimer
to constitute some "evidence that  '[the Union] effectively took steps
to neutralize [any] implied  inducement or encouragement of employees'
of other employ- ers." Warshawsky & Co., 325 N.L.R.B. No. 141, at 9
(quot- ing Service & Maintenance Employees Union No. 399 (The  William
J. Burns Int'l Detective Agency) 136 N.L.R.B. 431,  437 (1962)). The
ALJ's inference with respect to the dis- claimer is, at the very
least, reasonable. The disclaimer is  perfectly readable and although
all boilerplate language is  somewhat legalistic, that does not mean
that it is without any  effect.6




__________

n 6 The cases which the majority cites for discounting the existence 
of the disclaimer are clearly distinguishable. In National Ass'n of 
Broad. Employees, Local 31, 237 N.L.R.B. 1370 (1978), the Board 
simply found that the existence of a legal disclaimer on a handbill 
did not override the otherwise clear indication that the handbilling 
involved there was an integral part and extension of picketing being 
conducted simultaneously by the same union. Catalytic, Inc. v. 
Monmouth & Ocean County Building Trades Council, 829 F.2d 430  (3d
Cir. 1987), is not even a Board case; it is a review of a district 
court injunction against a labor union. Moreover, counsel for the 
union in that case admitted at oral argument that the union 
handbilling constituted a "signal." Finally, the court of appeals' 
finding that the disclaimer on the flyer constituted a "signal" was 
preceded immediately by the statement that the union's argument 
against the findings of the district court "ignore[d] the wide
latitude  open to triers of fact to make factual determinations on the
basis of  rational inferences which arise from the nature, location,
and effect  of picketing." Id. at 436 (quoting American Radio Ass'n,
AFL- CIO v. Mobile Steamship Ass'n, Inc., 419 U.S. 215, 232 (1974)).
Of  course, the trier of fact in the instant case made the opposite
factual  determination, that the disclaimer constituted credible
evidence  against an illegal intent under section 8(b)(4). Finally, in
Interna- tional Bhd. of Elec. Workers, Local 453 (Southern Sun Elec.
Corp.),  252 N.L.R.B. 719 (1980), the Board simply noted that a
self-serving  disclaimer that picketing was for a recognitional


The majority also infers that because the Union handbilled  only
neutral employees, it must have had an illegal intent  thereby. But
the ALJ's inference from this same fact is  equally compelling, or,
again, at least reasonable. The Com- pany chose to segregate
Automotion employees from the  construction employees; by scheduling
Automotion employ- ees at odd hours, the Company made it impossible
for the  Union to communicate its message to both Automotion and 
construction employees at the same time. The ALJ found  that because
the Automotion employees were presumably  already aware that their
wages were below area standards,  nothing was to be gained by the
Union in reinforcing this  knowledge. On the other hand, the
construction employees  were less likely to have been aware that
Automotion's wages  were below area standards. The ALJ determined that
the  Union had a legitimate (non-illegal) interest in informing the 
construction employees of Automotion's substandard wages  and that it
was not required to republish this fact to Automo- tion employees
simply to avoid the appearance of an improper  motive under section


The majority's final inference of intent to induce is drawn  from the
fact that a conversation between Union agents and  employees took
place and that some kind of a work stoppage  ensued. But what the
majority infers from that sequence  paints too bleak a picture for the
Union. The majority  conveniently ducks the question of how many of
the neutral  employees, in response to the handbill and the words
spoken  by Union agents, turned around and went home on the days  that
the Union handbilled. See Maj. op. at 3-4. If in fact we  knew that
all, virtually all, or even a substantial number of  the employees
spoken to refused to work each day, then,  perhaps, the majority's
inference that the work stoppage was  due to the Union's words might
be justified. However, we do  not know from the record how many




__________

n determinative of the union's object in picketing. This unremarkable 
proposition does not mean that legal disclaimers have no evidentia- ry
weight at all, it simply means that the mere existence of such a 
disclaimer does not necessarily win the day for the union.


around and went home. More specifically, we do not even  know the ratio
of employees who went home to employees  who stayed and went to work.
The stipulation tells us  nothing and the ALJ only found that a
preponderance of the  evidence failed to "establish that the failure
of some of those  employees to report for work ... had been other than
a  spontaneous reaction by those employees to the [Union's]  lawful
actions...." Warshawsky & Co., 325 N.L.R.B. No.  141, at 4-5 (emphasis
added). The majority has to assume  something totally absent from the
record, namely, that all,  virtually all, or at least a substantial
number of the employ- ees, refused to work, in order to infer from
that that "any  'non-inducement' words would be inconsistent with the
set- ting, and to suppose the union agents uttered them would be 
sheer speculation."7 Maj. op. at 13. Absent this first as- sumption
that the conversations and handbills affected more  employees than
not, to guess at the contents of these brief  car-side conversations
is sheer speculation. It is not unfath- omable, for example, that the
Union agents merely recon- veyed orally the gist of the handbill they
were distributing.  Clearly, had a hearing been held, testimony as to
the content  of the conversations could have been elicited. Without




__________

n 7 The majority cites again to Catalytic for the proposition that the 
"simple cause-and-effect of the appearance of leafletters and work 
stoppages eloquently testified to the purpose of the enterprise."  829
F.2d at 435. Again, Catalytic is not a Board case. It is a case  where
the court affirmed the findings of the district court, after  trial,
that a union had violated section 8(b)(4) and that an injunction  was
proper. The court in Catalytic rejected the union's arguments  against
the findings of the district court because they "ignore[d] the  wide
latitude open to triers of fact to make factual determinations  on the
basis of rational inferences which arise from the nature,  location,
and effect of picketing." Id. at 436 (quoting American  Radio Ass'n,
AFL-CIO v. Mobile Steamship Ass'n, Inc., 419 U.S.  215, 232 (1974)).
In any event, it is decidedly not the law that the  effect of a work
stoppage requires the conclusion of a section 8(b)(4)  violation. To
be sure, a work stoppage may constitute evidence of  inducement, and
the ALJ never said otherwise, but a work stoppage  alone is not
sufficient proof thereof. See Teamsters, Local Union  No. 688 (Levitz
Furniture Co.), 205 N.L.R.B. 1131 (1973).


testimony, it is the General Counsel's burden to prove the  Union's
speech fell on the inducement side, not the Union's  burden to prove
it did not.8


In the end, the majority's decision requires an acceptance  of the
proposition that the evidence here, entirely circumstan- tial, is so
overwhelming against the Union that it brooks of  only one conclusion,
a conclusion that is at odds with the  judgment of both the ALJ and
the unanimous Board and one  which must be reached in the face of
accepted legal principles  that the General Counsel bears the burden
of proof and that  courts owe substantial deference to the Board's
findings.  Ultimately, Chairman Gould's concurrence said it right:


[T]he Respondent's conduct here, although arguably con- sistent with an
attempt to induce a work stoppage,  ultimately lacks a sufficient
basis to support such a  finding [of a section 8(b)(4) violation]. The
"nod, wink,  and a smile" theory cannot prevail in these circumstances
 where the handbill explicitly stated that the Respondent  was not
seeking a work stoppage, and where the record  fails to show what the
Respondent said to the employees  as they approached the jobsite and
received the hand- bills. In the final analysis, a finding of a
violation must 




__________

n 8 The majority attempts to shift this burden to the Union by  citing
a string of cases, see Maj. op. at 13, which stand for the 
proposition that when a party who has relevant information in her 
control fails to produce that evidence, that failure may give rise to 
an inference that the evidence is unfavorable to her, see, e.g., 
International Union, United Automobile, Aerospace & Agric. Im- plement
Workers of Am. v. NLRB, 459 F.2d 1329, 1335-42 (D.C.  Cir. 1972). It
is true that had a hearing been held, and the Union  had refused to
call its agents to testify (or its agents refused to  testify) as to
the contents of the conversations, then the ALJ might  have been
justified in drawing an inference that the missing testi- mony would
have been damaging to the Union. Here, however,  there was no hearing
and no such phantom testimony. The Union  did not fail to provide
evidence in its control; it merely agreed,  jointly with the Company,
to a stipulation of facts. There is  absolutely no justification for
drawing an inference against the  Union merely because it agreed to a


be based on something more than the mere fact that the  employees
ceased work in response to the Respondent's  conduct.


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


I respectfully dissent.