Iron Workers Local 386 (Warshawsky & Co.)

National Labor Relations Board - Board Decisions

May 14, 1998

325 N.L.R.B. 748 (N.L.R.B. 1998)

748
325 NLRB No. 141
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to 1997.
Iron Workers Local 386 and Warshawsky & Com-
pany. Case 33–CC–1202
May 14, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
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 answer-
ing 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
CHAIRMAN GOULD, concurring.
I agree with my colleagues’ finding that the Re-
spondent, Iron Workers Local 386, did not violate Sec-
tion 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 & Com-
pany 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-
tained collective-bargaining agreements with various
unions. In addition, in March 1997,1 Warshawsky
hired Automation, Inc., a nonunion contractor, to per-
form 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 subcontrac-
tors who worked at the construction site from 7 a.m.
to 3:30 p.m., Automation would be working at the site
from 4 p.m. to 6 a.m. From March 13 through 19, the
Respondent, starting at 6:30 a.m. each day, distributed
handbills to employees of the general contractor and
the subcontractors as they approached the entrance to
the construction site. The handbill stated:
AUTOMATION, INC.
IS DESTROYING
THE STANDARD OF
WAGES FOR
HARD-WORKING
UNION MEMBERS
AUTOMATION, INC.
PAYS SUBSTANDARD
WAGES AND FRINGE BENEFITS
IGNORING THE AREA STANDARDS
THREATENS THE EFFORTS
AND SACRIFICES
OF ALL UNION MEMBERS
Iron Workers Local 386 is currently engaged in
labor dispute concerning the failure of Automa-
tion. Inc. to pay the area standard wages and
fringe benefits. We are appealing only to the gen-
eral 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 agents and receiving the handbills, em-
ployees of the general contractor and the subcontrac-
tors 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 per-
forming 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
in a work stoppage.
Such an argument is raised by the following facts.
The Respondent chose to handbill the site when its au-
dience would consist solely of the neutral employees.
Additionally, the handbill’s message—although dis-
claiming any interest in a work stoppage—reasonably
conveyed the Respondent’s desire to engage the neu-
tral employees in the Respondent’s dispute with Auto-
mation. 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, I am concerned that
the Respondent’s conduct was, in effect, a thinly
veiled attempt to evade the Act’s prohibition of induc-
ing a work stoppage by the neutral employees. How-
ever, a careful consideration of the facts and the rel-
evant case law persuades me that the record is insuffi-
cient 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
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00748 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
749IRON WORKERS LOCAL 386 (WARSHAWSKY & CO.)
2 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 pri-
mary. Here, as noted above, there is no direct evidence of an unlaw-
ful purpose, and the handbills specifically state that the Respondent
was not seeking the neutral employees to cease doing any work.
3 See generally Carbon Fuel Co. v. Mine Workers, 444 U.S. 212
(1979).
1 Unless stated otherwise, all dates occurred during 1997.
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’ re-
marks did not constitute an inducement or encourage-
ment for employees to engage in a work stoppage, but
rather were a declaration of what the law would per-
mit. 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
found that the remarks did not violate Section
8(b)(4)(i)(B) of the Act.
Like the conduct at issue in Tampa Sand, the Re-
spondent’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 Respond-
ent said to the employees as they approached the job-
site and received the handbills.2 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.3 Ac-
cordingly, 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 (ii)(B) of the Act as alleged.
Debra L. Stefanik, for the General Counsel.
Terrance B. McGann (Whitfield & Gregorio), of Chicago, Il-
linois, for the Respondent.
Michael W. Duffee and Tracy A. Peterson (Matkov, Salzman,
Madoff & Gunn), of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. This
matter has been presented on joint motion to accept a stipula-
tion of facts, waiving hearing. On March 25, 1997,1 the Re-
gional Director for Region 33 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of
hearing based on an unfair labor practice charge filed on
March 13, alleging, as amended, violations of Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act
(the Act). All parties have been afforded full opportunity
tojoin, and have joined, in the stipulation of facts and have
filed briefs. Based on that stipulation of facts, which con-
stitutes the entire record, and on the briefs which were filed,
I make the following
FINDINGS OF FACT
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 informa-
tional picket on March 13, 14, 17, 18 and 19, 1997. Answer-
ing further, the Respondent admits that the informational
picket began between 6:00 a.m. and 7:00 a.m. on the listed
dates.’’ (Emphasis added.)
After the stipulation of facts had been submitted and re-
ceived, and shortly before briefs were due, the Respondent
filed a motion to amend answer, seeking to substitute the
word ‘‘handbilling’’ for the word ‘‘picket’’ wherever the lat-
ter 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
(Warshawsky), filed an opposition to the motion, arguing
that it is material, is 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 ‘judi-
cial’ admission that is binding on the party making the ad-
mission.’’ (Citation omitted.) D. A. Collins Refractories, 272
NLRB 931, 932 (1984). However, the Board continued in
that case, such ‘‘judicial’’ admissions lose their binding ef-
fect whenever an amended pleading is filed, though ‘‘[t]he
statement still stands as an admission if introduced in evi-
dence as such’’ (272 NLRB 932 fn. 3), but still ‘‘is subject
to explanation and rebuttal by the party making the admis-
sion.’’
While it seems somewhat of a stretch to apply the adjec-
tive ‘‘typographical’’ to the 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) 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
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00749 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In the conduct of its normal business operations during the 12-
month period preceding execution of the stipulation of facts, a rep-
resentative 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 Sec. 2(2), (6), and (7) of the Act.
3 In the course of conducting those operations during the 12-month
period preceding execution of the stipulation of facts, a representa-
tive period, Johnson purchased goods valued in excess of $50,000
which it received directly from sources outside of the State of Illi-
nois. Therefore, at all material times Johnson has been an employer
engaged in commerce within the meaning of Sec. 2(2), (6), and (7)
of the Act.
4 Each of those subcontractors are employers engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act.
5 At all material times the Respondent has been a labor organiza-
tion within the meaning of Sec. 2(5) of the Act.
6 An admitted agent of the Respondent within the meaning of Sec.
2(13) of the Act.
of handbills’’ are alleged as conduct in which the Respond-
ent had engaged. As described in section III, infra, by defini-
tion ‘‘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 picket-
ing.
As to the substance of those latter two paragraphs, in its
answer, the Respondent denied flatly that its appeals had in-
cluded even ‘‘signal picketing and the passing out of
handbills[.]’’ In consequence, both the allegations serving as
the predicate for paragraph 7(c) and the Respondent’s answer
to those predicate allegations serve to support the motion’s
assertion that use of the word ‘‘picket’’ had been an
‘‘error.’’
In addition, the stipulation of facts, signed on behalf of all
parties, includes no description of conduct which constituted
picketing. As described in section II, infra, only handbilling
had been conducted on the March days enumerated in the
complaint as ones on which unlawful secondary conduct as-
sertedly 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
still could conclude that there had been ‘‘signal picketing’’
on those dates—and that the Respondent had intended its
handbilling to serve as a substitute for picketing. But, any
such conclusion should be based on the facts of what oc-
curred, not on what appears to have been an error in selec-
tion 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 & Lovett Grocery Co. v. NLRB, 213 F.2d
785, 786 (5th Cir. 1954).
Therefore, I grant the Respondent’s motion to amend an-
swer 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 stipu-
lation of facts had been filed and received, Warshawsky has
not moved to reopen the record should the motion be grant-
ed. Nor has it enumerated any specific differences that it
would have sought in the stipulation of facts should the mo-
tion 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 an-
swer would necessitate revision of, or additions to, the stipu-
lation of facts which has been submitted. Cf. Liberty Natural
Products, 314 NLRB 630 (1994). Accordingly, there is no
basis for concluding that any party is prejudiced by granting
the Respondent’s motion to amend answer.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This case presents issues of whether handbills and the
manner in which they were distributed during 5 days in
March violated Section 8(b)(4)(i) and (ii)(B) of the Act.
The situs of the dispute in this case is located at the inter-
section 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, Illinois, engaged in
the warehousing and sale of auto parts and accessories.2 At
all times material hereto, the LaSalle site has been main-
tained as a construction project only and has not been open
to members of the general public.
To construct that facility, Warshawsy has engaged, as the
general contractor responsible for construction of the LaSalle
warehouse and mail order facility, G. A. Johnson & Son, Inc.
(Johnson), an Illinois corporation with its principal place of
business in Evanston, Illinois, engaged in the construction
business.3 In turn, Johnson has subcontracted certain con-
struction work at the LaSalle site to certain subcontractors:
Five County Glass & Mirror, Inc.; R. G. Construction Serv-
ices, Inc.; Hilltop Heating & Sheet Metal, Inc.; J. B. Con-
tracting Co.; Dan Car Sprinkler Co.; Scurto Cement Con-
struction, Ltd.; Star Erectors, Inc.; and Schweickert Ma-
sonry.4 Johnson and those subcontractors performed work at
the LaSalle site during the hours of approximately 7 a.m. and
3:30 p.m., Mondays through Fridays, as well as occasionally
on Saturdays.
All of the above-named subcontractors maintain collective-
bargaining contracts with various building trades unions
which represent the employees of those subcontractors who
are working on Warshawsky’s LaSalle warehouse and mail
order facility project. At no time material hereto has the Re-
spondent5 been engaged in a labor dispute with Johnson nor
with any of the above-named subcontractors whose employ-
ees are working on that project.
During March, Warshawsky retained Automation, Inc.
(Automation) to install certain rack and conveyor systems at
its LaSalle warehouse and mail order facility project. On
March 5 the Respondent engaged in area standards picketing
of Automation at that project. However, on being informed
that Automation was not yet working at that site, the Re-
spondent ceased its picketing at the LaSalle project, appar-
ently 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 the Respondent’s
financial secretary/business agent Daniel F. Aussem6 that,
inter alia, Automation, ‘‘its employees and suppliers, will be
present at [Warshawsky’s] project in LaSalle, Illinois on
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00750 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
751IRON WORKERS LOCAL 386 (WARSHAWSKY & CO.)
Monday through Saturday only between the hours of 4 p.m.
and 6 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 the Respondent ‘‘confine any picketing of
Automation . . . to the above listed times’’; and, by warning
that, ‘‘[a]ny picketing of Automation . . . 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 ac-
tion in federal court for any damages resulting from such un-
lawful activity.’’ There is no evidence as to how that letter
was transmitted to the Respondent nor as to when, if ever,
it had been received by the Respondent.
Automotion commenced work for Warshawsky at LaSalle
on March 12 during times conforming to those set forth in
Rundle’s above-described letter to the Respondent of that
same date. At all times between March 12 and 19 Automa-
tion, 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 the 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. Whit-
ney Way, in close proximity to the entrance to
Warshawsky’s project. Those agents were there for approxi-
mately 3 to 4 hours on March 13. They returned there about
6:30 a.m. on March 14, 17, 18, and 19 for approximately 3
to 4 hours on each date. At no time on any of those dates
did the Respondent or its agents appear at Warshawsky’s La-
Salle construction project at times when Automation, its em-
ployees, suppliers, and subcontractors were present at that
site.
As to the actions of the Respondent’s agents while at the
project, they engaged in two types of conduct directed to em-
ployees of Johnson and those of its subcontractors as those
employees attempted to drive their vehicles into
Warshawsky’s construction site. First, the 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, the
Respondent’s agents distributed a copy of a handbill to each
of them. That handbill states:
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
At the bottom of the handbill appears the following state-
ment:
Iron Workers Local 386 is currently engaged in a 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 seek-
ing any person to cease work or to stop making deliv-
eries.
The first six above-quoted lines in the handbill are in ap-
proximately 11/32-inch type size. The next six lines are in
approximately 6/32 inches or 3/16-inch type size. The dis-
claimer at the bottom is in much smaller 4/32-inch 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, there-
by refusing to perform services there for their respective em-
ployers. Similarly, on March 14 and 17–19, the parties stipu-
lated, ‘‘Various individuals employed by Johnson and the
. . . subcontractors continued to refuse to enter onto the La-
Salle 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 La-
Salle project, the Respondent unlawfully induced and encour-
aged employees of Johnson and of its subcontractors to
refuse in the course of their employment to perform services
for their own neutral employers—thereby threatening, coerc-
ing, and restraining those neutral employers—for the ultimate
object of forcing and requiring Warshawsky to cease doing
business with Automation. For the reasons set forth in sec-
tion 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
17–18, had been other than a spontaneous reaction by those
employees to the Respondent’s lawful actions of publicizing,
other than through picketing or through conduct tantamount
to picketing, undisputed facts about Automation’s wages and
benefits.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00751 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. DISCUSSION
To the extent pertinent here, Section 8(b)(4)(i) and(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 indi-
vidual 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 han-
dle or work on any goods, articles, materials, or com-
modities 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, sell-
ing, handling, transporting, or otherwise dealing in the
products of any other producer, processor, or manufac-
turer, 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, evi-
dence showing, or 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 estab-
lish both unlawful conduct and unlawful action.
In their briefs each of the parties refers to one or the other
of the Supreme Court’s decisions in Edward J. DeBartolo
Corp. v. NLRB, 463 U.S. 147 (1983) (DeBartolo I) and in
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
& Construction Trades Council, 485 U.S. 568 (1988)
(DeBartolo II) though for different reasons. The results of
those two cases are not dispositive of the ultimate issues pre-
sented in the instant case, however, though some of the rea-
soning 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
(4)(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 (4)(i)
conduct of ‘‘induce[ing] or encourage[ing] any individual
employed by any person engaged in commerce or in an in-
dustry 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 [Section] 8(b)(4)(i). But more that
mere persuasion is necessary to prove a violation of [Section]
8(b)(4)(ii)(B): that section requires a showing of threats, co-
ercion, or restraints.’’ 485 U.S. at 578. In contrast to (4)(ii)
conduct, which is confined to situations involving ‘‘economic
pressure of a compelling or restraining 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.’’ Electrical Workers IBEW v. NLRB, 341
U.S. 697, 701–702 (1951).
The allegations of the instant case, therefore, address a
type of conduct, under Section 8(b)(4)(i) of the Act, which
did not confront the Supreme Court in either DeBartolo case.
Moreover, whenever inducement or encouragement of a neu-
tral or secondary employer’s employees occurs ‘‘in the pres-
ence 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 Su-
preme Court was not confronted with an allegation of (4)(i)
conduct in the DeBartolo cases, neither did it have the op-
portunity to address the (4)(ii) allegation of those cases in the
context of (4)(i) conduct.
Secondly, unlike the situation in DeBartolo I—and, for
that matter, in a 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 per-
tinent part, that proviso states:
Provided further, That for the purposes of this para-
graph (4) only, nothing contained in such paragraph
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 em-
ployer 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 induc-
ing 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[.]’’ [Emphasis
added.]
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
here.
As set forth in section II, supra, the parties stipulated that
‘‘individuals employed by Johnson and [by its] subcontrac-
tors refused to enter into [Warshawsky’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 es-
sence, construction employees of Automation—a conclusion
reached by the Supreme Court in DeBartolo I (‘‘that con-
struction workers, like truck drivers, may perform services
that are essential to the production and distribution of con-
sumer goods’’) on the basis of an assumption (‘‘we may as-
sume here’’) based, in turn, on DeBartolo’s ‘‘willing[ness] to
concede that Wilson distributes products that are ‘produced’
by High’’ (463 U.S. at 155)—the stipulated facts establish
that the Respondent’s handbilling did ‘‘have an effect of in-
ducing . . . 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 were confined to publicizing the
asserted fact that Automation’s wages and fringe benefits did
not rise to the level of the standards for the LaSalle area. At
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00752 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
753IRON WORKERS LOCAL 386 (WARSHAWSKY & CO.)
no point did they claim the fact that Warshawsky, or any of
the other employers at the LaSalle site, was, or would be,
distributing Automation’s product. In consequence, the Re-
spondent failed to engage in the very conduct to which the
publicity proviso addresses its protection.
The Respondent argues that Murphy Road ‘‘was not used
exclusively by employees of Johnson and other subcontrac-
tors,’’ but is a ‘‘public road . . . used by individuals with
no association to the LaSalle Facility and who received the
identical handbill received by employees of neutral employ-
ers.’’ Those asserted facts are not truly supported by the par-
ties’ stipulation of facts. Even if they were supported by it,
however, the handbills’ limited message deprives the Re-
spondent’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 pro-
duced by Automation.
In fact, the stipulated facts leave scant room for any con-
clusion that the handbills had been intended for anyone other
than persons reporting for work at the LaSalle project. There
is no basis in the stipulation that would allow even an infer-
ence that handbills had been actually distributed to anyone
else. There is no express stipulation to that effect. The stipu-
lation 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 asso-
ciation 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 alleg-
edly unlawful March conduct in which the Respondent and
its agents engaged at Warshawsky’s LaSalle warehouse and
mail order facility construction project. Even so, that conclu-
sion does not conclude further analysis of the Respondent’s
conduct. In DeBartolo II, the Supreme Court held that the
publicity proviso is an express ‘‘clarification’’ by Congress
of the reach of Section 8(b)(4)’s prohibitions, rather than
being an exception to those prohibitions: ‘‘[W]e agree with
that conclusion,’’ (485 U.S. at 584), by the court of appeals,
that the proviso had been ‘‘‘drafted as an interpretive, ex-
planatory section’ and not as an exception to an otherwise
all-encompassing prohibition on publicity in [Section]
8(b)(4).’’ 485 U.S. at 574. That holding is important to reso-
lution of the instant case.
First, the fact that the proviso is an express ‘‘clarifica-
tion,’’ rather than an exception, is some indication that Con-
gress 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 em-
braces both ‘‘consumers and members of a labor
organization[.]’’ Inasmuch as the proviso serves as a clari-
fication, 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 conclud-
ing that such publicity constitutes unlawful inducement or
encouragement.
As will be discussed below, that appears to be a conclu-
sion which the Board has reached and adhered to for some
time. The significant point here is that, in its expressed clari-
fication 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 publi-
cation. That is, it did not confine the interpretive and explan-
atory language to a labor organization’s own members. Rath-
er, the language is sufficiently broad to allow the clarifica-
tion to reach publicity directed to members of any labor or-
ganization or organizations. Consequently, the fact that the
Respondent distributed handbills to members of other labor
organizations does not, standing by itself, necessarily estab-
lish that the Respondent had engaged in unlawful (4)(i) in-
ducement or encouragement.
It also is significant that the Respondent did not engage
in actual picketing on any of the five March dates enumer-
ated in the complaint as being ones on which unlawful activ-
ity allegedly had taken place. Instead, on all five dates the
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 communica-
tion’’ 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.’’ Bakery
& Pastry Drivers & Helpers Local 801 v. Wohl, 316 U.S.
643 (194). Not only is a handbill generically different from
picketing, the Court pointed out in DeBartolo II, but state-
ments in handbills constitute ‘‘expressive activity’’ the legis-
lative proscription of which ‘‘would pose a substantial issue
of validity under the First Amendment.’’ 485 U.S. at 575–
576.
Of course, that does not mean that handbilling enjoys un-
fettered exemption under Section 8(b)(4) of the Act, regard-
less of the message being communicated and the means by
which it is conducted. ‘‘We do not suggest that communica-
tions by labor unions are never of the commercial speech va-
riety and thereby entitled to a lesser degree of constitutional
protection.’’ DeBartolo II, 485 U.S. at 576. Under the First
Amendment, Congress can validly oblige labor organizations
to confine the pressure which they bring ‘‘on offending em-
ployers in primary labor disputes’’ to means which shield
‘‘unoffending employers and others from pressures in con-
troversies not their own.’’ NLRB v. Denver Building & Con-
struction Trades Council, 341 U.S. 675, 692 (1951). Espe-
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00753 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cially in the context of common situs situations, labor organi-
zations must make reasonable efforts to minimize the impact
of their messages on 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 ex-
tended the statutory prohibition of Section 8(b)(4)(i) and
(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 picket-
ing, 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 picket-
ing and, accordingly, has been measured by the principles
applied to ‘‘the mixture of conduct and circumstances,’’
DeBartolo II, supra, which constitute picketing. See, e.g.,
San Francisco Building Trades Council (Goold Electric), 297
NLRB 1050, 1057 (1991).
Even without actual picketing, however, the circumstances
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 re-
garded 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 mere-
ly engaged in communicating the information set out in the
handbills, but [is] actually seeking in distributing such hand-
bills 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 688 (Levitz
Furniture Co.), 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 report for work after having received handbills. In-
deed, that might appear to have been the conclusion reached
on 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 enter-
prise’’ and ‘‘demonstrated that Local 825 sought to persuade
other craft unions to violate their contractual no strike obliga-
tions.’’ Still, the handbills or leaflets in that case were dis-
tributed in a no-strike contractual provision situation, carried
a message broader than the one covered by the Respondent’s
handbill in that they actually protested assignment of mobile
crane work to ‘‘non-building trades,’’ and charged the pri-
mary employer with being ‘‘unfair’’ for having done so.
Here in contrast, so far as the evidence reveals, there is
no contractual obligation undertaken by the Respondent to
Warshawsky, nor to Johnson or to its subcontractors. Resolu-
tion of the ultimate issue here is confined to the extent to
which, consistent with the First Amendment and the Act,
Congress can restrict expressive activity in a labor-manage-
ment setting. Further, as pointed out above, the Catalytic
handbills protested a work assignment to a particular em-
ployer. By contrast, the Respondent’s handbill protests no
more than wages and fringe benefits provided by Automa-
tion; no mention is made in that handbill of Warshawsky’s
choice of Automation to perform the rack and conveyor sys-
tems 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 Automation, in the 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 rec-
ognized the constitutional and statutory protection extended
to handbill messages protesting failures to satisfy area wage
and fringe benefits standards—those which ‘‘press[ ] the ben-
efits of unionism to the community and the dangers of inad-
equate wages to the economy and the standard of living of
the populace.’’ 485 U.S. at 576. Therefore, when evaluating
the lawfulness of such messages, even when disseminated to
members of a labor organization at a common situs, analysis
must proceed with care.
That some handbill recipients may interpret purely area
standards messages as some form of appeal for refusals to
perform work is not the determinative consideration. For, a
reader’s or, for that matter, listener’s ‘‘subjective interpreta-
tion’’ 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 lan-
guage 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 neu-
tral employees that ‘‘they had the right, as individuals, not
to handle [the primary’s] products,’’ which arose in Building
& Construction Trades Council of Tampa (Tampa Sand &
Material Co.), 132 NLRB 1564, 1565 (1961). The Board dis-
missed the complaint that case, concluding that, ‘‘To read in-
ducement 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.’’ (132 NLRB at 1566.)
Similarly, in Gould Inc., 238 NLRB 618 (1978), enfd. 638
F.2d 159 (10th Cir. 1980), cert. denied sub nom. Brown
Boveri Electric 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 respond-
ent’s business manager had told employees ‘‘that whatever
action the employees took would be their individual choice
and action.’’ (238 NLRB at 622.) Approximately 85 of 90
first-shift employees walked out. Nevertheless, the Board
agreed that there had been no ‘‘union authorization or union
inducement within the meaning of Section 8(b)(4)(i) of the
Act,’’ relying on the holding of Tampa Sand. The employ-
ees’ walkout was regarded as having been spontaneous. Con-
sequently, the fact that readers of handbills may choose to
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00754 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
755IRON WORKERS LOCAL 386 (WARSHAWSKY & CO.)
cease working on 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 Sec-
tion 8(b)(4)(i) of the Act. More must be shown than simply
a work cessation by some recipients for a conclusion that un-
lawful inducement or encouragement has occurred.
That ‘‘more’’ is what is supplied whenever signal picket-
ing 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.
Teamsters Local 182 (Woodward Motors), 314 F.2d 153 (2d
Cir. 1963) (placards placed in a nearby snow bank); Labor-
ers 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 solely
expressive activity, Service Employees Local 87 (Trinity
Maintenance), 312 NLRB 715, 746, 748 (1993); Mine Work-
ers (New Beckley Mining), 304 NLRB 71, 71–73 (1991);
Mine Workers District 12 (Truax-Traer Coal Co.), 177
NLRB 213, 217–218 (1969); accompanying appeals not to
report for work or about a need for employees of neutral em-
ployers to, in effect, make common cause with handbillers,
Teamsters Local 315 (Santa Fe), 306 NLRB 616, 630–631
(1992); Electric Workers IBEW Local 3 (General Dynamics
Communications Co.), 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 will refrain from working in support of the
ostensibly handbilling labor organization, Service Employees
Local 87 (Trinity Maintenance), supra at 750 (seeking strike
sanctions); Truck Drivers & Helpers Local 728 (Genuine
Parts Co.), 119 NLRB 399 (1957) (pledging ‘‘combined eco-
nomic 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 at 745; and, a history or pattern
of secondary harassment, Electric Workers IBEW Local 3,
supra.
As quoted in section II, supra, the handbill distributed by
the Respondent’s agents at Washawsky LaSalle project is
confined only to Automation. It makes no mention of any
other employer and states no complaint about Warshawsky
having chosen to assign rack and conveyor systems installa-
tion to Automation. Beyond that, neither the General Counsel
nor Warshawsky have challenged the truthfulness of the
handbill’s protest: that Automation’s wages and fringe bene-
fits do not rise to the level which is standard in the LaSalle
area. Cf. Great American, 322 NLRB 17 (1996); Service Em-
ployees Local 254 (Janitronic, Inc.), 271 NLRB 750, 751–
752 (1984). Nor is there an independent basis in the stipula-
tion of facts for concluding that the handbill’s statements,
about Automation’s wages and fringes, had been untruthful.
True, the handbill’s message is phrased stridently. Even
so, it would seem that protection of even a strident message
about ‘‘the dangers of inadequate wages to the economy and
the standard of living of the populace,’’ DeBartolo II, 485
U.S. at 576, is protected by the First Amendment and by the
Act. Stridency, alone, is no basis for depriving area standards
messages of such protection.
Seizing on the handbill’s statement that ‘‘IGNORING
THE AREA STANDARDS THREATENS THE EFFORTS
AND SACRIFICES OF ALL UNION MEMBERS,’’ the
General Counsel contends that the Respondent had been ask-
ing union employees ‘‘not to ‘ignore’ the area standards vio-
lation,’’ thereby implicitly advocating a work stoppage. By
its very terms, however, the unstated subject of that state-
ment is Automation, 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 Automation which is ‘‘DESTROYING’’ the area standard
by ‘‘IGNORING’’ that standard—not, as the General Coun-
sel would have it, that recipients of handbills should not ig-
nore that conduct of Automation.
In light of the foregoing considerations, the complaint is
left with a handbill that does no more than truthfully advise
recipients of facts about Automation’s wages and fringe ben-
efits. If labor organizations are not obliged under Section
8(b)(4)(i) and (ii)(B) to ‘‘refrain from making the law known
to [their] members,’’ Building & Construction Trades Coun-
cil 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 re-
garded 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 between dissemination of facts to a
labor organization’s own members and those who are mem-
bers of other labor organizations.
After all, had the Respondent chosen, instead of
handbilling, to publicize Automation’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)
and(ii)(B) would be violated through ‘‘newspaper, radio, and
television’’ protests, DeBartolo II, 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 the Respondent.
Moving beyond the wording of the handbill, much is made
of the fact that handbilling did not occur whenever Automa-
tion’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. Pre-
sumably, Automation’s employees were not ignorant about
their wages and fringes. Presumably, they were aware of the
relationship between their wages and fringe benefits, on the
one hand, and those which prevailed elsewhere in the area.
Seemingly, nothing was to be gained by reinforcing that
knowledge of Automation’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 Automation’s wages and fringe benefits.
And under Tampa Sand, the Respondent was not required to
refrain from informing Johnson’s and its subcontractors’ em-
ployees of those facts.
Of course, there is no evidence that the Respondent con-
veyed its message to any member of ‘‘the public’’ beyond
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00755 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those persons who were attempting to enter Warshawsky’s
project during those five mornings in mid-March. Nonethe-
less, there is no evidence that the Respondent’s agents con-
fined 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 per-
sons 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, obliges labor organizations to publicize their dis-
putes as broadly as possible to qualify as ‘‘public’’ publica-
tion. Dissemination to the butcher, the baker, and the candle-
stick 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 the Respondent chose to handbill only at a
common situs where Automation employees were working,
but not during times when Automation’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 dissemi-
nation of ideas, which is involved, rather than the mixture of
conduct and communication involved where there is picket-
ing. DeBartolo II, supra. Beyond that, it should not escape
notice that, at the bottom of the handbill, recipients were in-
formed specifically that the Respondent was ‘‘not seeking
any person to cease work or to stop making deliveries.’’ That
is some evidence that ‘‘Respondent effectively took steps to
neutralize [any] implied inducement or encouragement of
employees’’ of other employers. Service & Maintenance Em-
ployees Union No. 399 (The William J. Burns International
Detective Agency), 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 the Respondent ‘‘was not re-
quired to actively discourage [a] sympathy strike in order to
disestablish any connection to secondary activity.’’ Gould
Inc., 238 NLRB at 622.
There is no evidence that, in conjunction with the
handbilling, the Respondent or its agents had made appeals
of a nature which, as discussed above, could serve as indica-
tors of signal picketing. That is, there is no evidence that the
Respondent appealed for employees of Johnson and of its
subcontractors not to report for work or to make common
cause with the Respondent. There is no evidence that the Re-
spondent 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 on the stipulated fact that the Respondent’s agents
‘‘briefly spoke with . . . individuals employed by Johnson
and its union subcontractors’’ to whom handbills were hand-
ed. 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 be-
tween a labor organization and employees does not, of itself,
serve to establish unlawful inducement or encouragement.
Painters Local 829 (Theatre Techniques, Inc.), 243 NLRB
27, 28 (1979). ‘‘Evidence that a union official merely spoke
to a neutral employee during the course of a labor dispute
is not evidence of an unlawful object.’’ Operating Engineers
Local 12 (Cal Tram Rebuilders), 267 NLRB 272, 274 fn. 4
(1983). Nor, standing alone, should it be sufficient to estab-
lish unlawful inducement or encouragement, inasmuch as,
‘‘The burden of establishing every element of a violation
under the Act is on the General Counsel.’’ Western Tug &
Barge Corp., 207 NLRB 163 fn. 1 (1973).
Much is made of the stipulated fact that the Respondent
had ‘‘engaged in area standards picketing of Automation’’ 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 [the
Respondent] was informed that Automation, Inc. was not yet
working at that site.’’ If anything, the Respondent’s cessation
of picketing tends more to indicate that the object of its con-
duct at Warshawsky’s project had been primary, than to indi-
cate that its object had been a secondary one.
Implicit in a message ‘‘that Automation, Inc. was not yet
working at that site’’ is an obvious, but unstated, concomi-
tant communication that Automation eventually will be
‘‘working at that site.’’ That the Respondent then chose to
withdraw its pickets is some indication, though not a deter-
minative one, of primary object. For, had its true object been
to induce and encourage neutral employer’s employees to
withhold their services, to in turn ultimately compel
Warshawsky to cease doing business with Automation, there
would have been no need to withdraw the pickets simply be-
cause Automation’s personnel had not yet arrived at the La-
Salle project. Continued picketing might have led to Automa-
tion being prevented from ever being allowed by
Warshawsky to work on the project. Beyond that, that 1 day
of picketing was concededly ‘‘area standards picketing.’’ Of
itself, such picketing is not encompassed by the prohibition
of Section 8(b)(4)(B). See, e.g., Gould Inc., supra.
There is no evidence that the Respondent has a history, or
has engaged in a pattern, of secondary harassment of neutral
employers and their employees. There is no evidence of
independent threats, coercion, or restraints directed to ‘‘any
person engaged in commerce or in an industry affecting com-
merce,’’ within the meaning of Section 8(b)(4)(ii) of the Act.
Thus, given the considerations set forth above, it cannot be
concluded that the Respondent’s mid-March handbilling, and
the circumstances under which it had been conducted, rose
to a level which allows it to be fairly characterized as statu-
torily proscribed ‘‘signal picketing.’’
Beyond that, the totality of the evidence will not support
a conclusion that there had been inducement or encourage-
ment within the meaning of Section 8(b)(4)(i) of the Act nor,
given the absence of such evidence, that there had been
threats, coercion or restraints encompassed within the mean-
ing of Section 8(b)(4)(ii) of the Act. The handbill’s message
was a truthful one. It mentioned no employer other than Au-
tomation, without protesting Warshawsky’s selection of Au-
tomation to perform the LaSalle rack and conveyor systems
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00756 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10
757IRON WORKERS LOCAL 386 (WARSHAWSKY & CO.)
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
installation work. Neither in the handbill nor, so far as the
record discloses, by any other means did the Respondent ap-
peal for support by employees of other employers working
at the site. There is no evidence of support being offered to
employees of neutral employers who might choose to refuse
to report for work at the project. There is no evidence that
handbillers patrolled, as would pickets, nor that they engaged
in any other activity conveying that, in reality, they were
picketing. There is no contention that the numbers of
handbillers had been disproportionate to that which was
needed to ensure distribution of handbills. In sum, there is
no basis for concluding that it would have been ‘‘reasonable
for anyone approaching [Warshawsky’s LaSalle] premises to
conclude that picketing rather than handbilling was being
conducted.’’ (Footnote omitted.) Teamsters Local 688 (Levitz
Furniture), 205 NLRB at 1133.
Therefore, a preponderance of the evidence fails to estab-
lish that the Respondent engaged in statutorily prohibited
conduct and, also, fails to establish that its handbilling had
been for a statutorily prohibited object. Accordingly, I shall
dismiss the complaint.
CONCLUSIONS OF LAW
Iron Workers Local 386, a labor organization, has not vio-
lated the Act in any manner alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
It is ordered that the complaint be, and is, dismissed in its
entirety.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00757 Fmt 0610 Sfmt 0610 D:\NLRB\325.111 APPS10 PsN: APPS10