Hospital and Service Employees Union, Service Employees International Union, AFL-CIO, Local 399 (Delta Air Lines, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hospital and Service Employees Union, Service Em- ployees International Union, AFL-CIO, Local 399 and Delta Air Lines, Inc. Case 31-CC-861 September 10, 1982 DECISION AND ORDER On December 11, 1979, Administrative Law Judge Martin S. Bennett issued the attached Deci- sion in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and support- ing briefs, and Delta Air Lines filed cross-excep- tions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent violated Section 8(b)(4)(ii)(B) of the Act by distributing handbills and by publishing portions of those handbills in union newspapers with an object of forcing Delta Airlines (herein Delta) to cease doing business with Statewide, the primary employer. The General Counsel, Delta, and Re- spondent filed exceptions to the Administrative Law Judge's factual findings; Respondent also ex- cepted to the Administrative Law Judge's conclu- sions. For the reasons set forth below, we adopt the Administrative Law Judge's conclusions. The parties stipulated to the essential facts in this case before the hearing. From July 1, 1975, to De- cember 16, 1976, Delta subcontracted to National Cleaning Company (herein National) the janitorial work for its administrative offices at the Los Ange- les International Airport (herein LAX). National, which is a party to a collective-bargaining agree- ment with Respondent, employed six members of Respondent to perform Delta's janitorial work. On December 16, 1976, Delta lawfully terminated its subcontract with National and began contracting out the janitorial work to Statewide, a nonunion employer. As a result, National was forced to lay off five of the six employees working at Delta, transferring one employee to another job. The par- ties stipulated that thereafter Respondent had a pri- mary labor dispute with Statewide and no primary dispute with Delta. I On March 13, 1979, the Board remanded this case to the Regional Director for a hearing on all issues since the parties' briefs raised issues outside the stipulation of facts. When this case was heard before the Ad- ministrative Law Judge, the parties merely submitted into evidence their stipulation of facts and a short addendum to it. s The General Counsel excepts to the Administrative Law Judge's in- advertent failure to make jurisdictional findings of fact on Statewide Maintenance Corporation (herein called Statewide). Since the parties' stipulation fully sets forth the facts necessary for making such a finding, we hereby find that Statewide is a person engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. 263 NLRB No. 153 On September 23, 1977,3 in furtherance of its primary dispute with Statewide, Respondent began distributing handbills at Delta's LAX facility and in front of Delta's downtown Los Angeles ticket office; it published portions of those handbills in union newspapers. Specifically, four handbills were distributed at these locations, referred to herein as Handbills A, B, C, and D. 4 Handbill A, distributed from September 23 to October 3, consisted of two sides; one side read, "Please do not fly Delta Airlines. Delta Airlines Unfair, Does not provide AFL-CIO conditions of employment"; the other side, set forth in full in the Administrative Law Judge's Decision, stated, "It takes more than money to fly Delta. It takes nerve," and included information taken from the National Transportation Board (NTB) and the Civil Aeronautics Board (CAB) pertaining to Delta's accident and consumer complaint record. Respondent voluntarily withdrew Handbill A on October 3. Handbill B, distributed from October 6 to Octo- ber 12, contained the identical information as that contained on side 2 of Handbill A (Delta's NTB and CAB record) except it omitted the CAB statis- tics pertaining to consumer complaints. Respondent voluntarily withdrew this handbill on October 12. Handbill C, distributed from October 13 to De- cember 28, 5 consisted of two sides; side 1 urged the public to boycott Delta because Delta caused members of Respondent to become unemployed and subcontracted with a "maintenance company" which does not provide union wages and benefits; the other side listed the identical accident and com- plaint information as that contained on side 2 of Handbill A. Finally, Handbill D, distributed from January 3 to March 1, 1978,6 was almost identical to Handbill C, except on side 1 it identified the "maintenance company" as Statewide, and on side 2, before list- ing the NTB and CAB information, it included an introductory statement advising the public that it was bringing the statistical information to their at- tention in furtherance of its primary dispute with Statewide. Simultaneous with the handbilling, Respondent published copies of Handbills A and C in two s All dates are 1977, unless otherwise stated. ' The sides of Handbills A, C, and D, which the Administrative Law Judge failed to include in his Decision, are set forth in full in Appendixes 1, 11, III [omitted from publication.] $ Although the stipulation states that Handbill C was distributed "to date," Respondent contends in its brief that it was voluntarily withdrawn on December 28, 1977. 6 Although the stipulation states only that Handbill D was distributed "to date," both the General Counsel and Respondent stated in their briefs that on March 1, 1978, the United States District Court for the Central District of California temporarily enjoined it. 996 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 union newspapers, the Service Union Reporter (SUR) and the Service Union Reporter, Political Action Report (SURPAR). Specifically, Respond- ent published Handbill A in the September edition of SUR and SURPAR, and Handbill C in the Oc- tober edition of these two newspapers and the De- cember edition of SURPAR. Respondent also pub- lished in the September edition of SUR and the October edition of SURPAR, a block advertise- ment which stated, "Do Not Fly Delta." The par- ties stipulated that these block advertisements were published in conjunction with the publication of Handbills A and C, and we will therefore treat them as extensions of those handbills. The Administrative Law Judge found that Re- spondent's handbilling and advertisements were un- lawful under Section 8(b)(4) because the inclusion of the NTB and CAB information on the handbills and advertisements was misleadingly unrelated to any dispute with Delta and "highly coercive" of Delta and therefore removed the handbills from the protection of the publicity proviso. Respondent excepts, contending that (1) Handbills A, B, and C were voluntarily withdrawn and therefore should not be considered by the Board; (2) Handbill D sat- isfies the conditions of the publicity proviso be- cause. it identifies the primary dispute and includes only "truthful" information,7 and (3) if the inclu- sion of the NTB and CAB information on Delta causes the handbill to lose the protection of the proviso, it is nevertheless protected by the first amendment to the Constitution and thus cannot be found unlawful. For the reasons set forth below, we find Respondent's exceptions lacking in merit. Section 8(b)(4) makes it unlawful for a union to threaten, coerce, or restrain a secondary employer with an object of forcing or requiring that second- ary employer to cease doing business with any other person. Here Respondent's handbilling and advertisements, urging a total consumer boycott of Delta, the secondary, were designed to bring eco- nomic pressure on Delta for the purpose of forcing Delta to cease doing business with Statewide, the primary. Thus, we find that Respondent's conduct falls within the proscription of Section 8(b)(4). Indeed, we note that Respondent apparently so concedes because it argues only that its conduct is protected by either the publicity proviso or the first amendment, and not that it is noncoercive or for a lawful primary purpose. I Respondent states in its brief that no one contends the NTB and CAB information is untrue. Delta argues, however, that the NTB and CAB information published alone is misleading because it tends to imply that Delta is not among the safest airlines in the industry, which it con- tends it is. However, Delta has the burden of showing that the informa- tion is misleading, and failed to present any evidence on this issue. Ac- cordingly, we shall only decide this case on the assumption that the NTB and CAB information is factually accurate. The publicity proviso exempts from the proscrip- tion of Section 8(b)(4) all: ... .publicity, other than picketing, for the purpose of truthfully advising the public, in- cluding consumers and members of a labor or- ganization, that a product or products are pro- duced by an employer with whom the labor organization has a primary dispute and are dis- tributed 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. The parties stipulated that Respondent's conduct did not cause any employees of Delta or any other person to cease performing services; thus, the only issue is whether the handbills were for the "pur- pose of truthfully advising the public" within the meaning of the proviso. It is clear from the express language of the pro- viso that at the very least the proviso requires pub- licity to advise the public of the nature of the pri- mary dispute and the secondary employer's rela- tionship to it. Indeed, Respondent in its brief en- dorses this reading of the proviso. Yet, although Respondent's Handbills C and D make reference to the primary dispute and Delta's relationship to it, Handbills A and B fail to mention Statewide at all. In fact, the only employer referred to in Handbills A and B is Delta. Thus, we find that Handbills A and B, by failing to identify the primary dispute, were not "for the purpose of truthfully advising the public" within the meaning of the proviso, and that their distribution therefore violated Section 8(b)(4)(ii)(B) of the Act. As noted above, the Ad- ministrative Law Judge treated all four handbills the same and found they were not protected by the proviso because they included the "misleadingly unrelated" and "highly coercive" NTB and CAB information on Delta. To the extent that we rely on a different rationale for finding Handbills A and B unprotected, we reject the Administrative Law Judge's discussion as it pertains to these two hand- bills. Contrary to Handbills A and B, Handbills C and D identify the nature of the primary dispute, but they also include the NTB and CAB information which pertains only to Delta, the secondary em- ployer, and is totally unrelated to Delta's connec- tion with Respondent's primary labor dispute. It is clear from the circumstances that Respondent in- cluded this statistical information in its handbills 997 DECISIONS OF NATIONAL LABOR RELATIONS BOARD solely to bring economic pressure upon Delta for the purpose of forcing Delta to cease doing busi- ness with Statewide, and not because of an inde- pendent dispute with Delta over Delta's safety record. Indeed, Respondent expressly admits its secondary object for publishing this information when it states on side 2 of Handbill D that it is bringing this information to the public's attention in order to "publicize its primary [labor] dispute with Statewide." s Thus, it is clear, and we find, that the publishing of the NTB and CAB information con- stitutes threats, restraint, or coercion for an unlaw- ful secondary purpose within the meaning of Sec- tion 8(b)(4)(ii)(B) of the Act. The remaining question is whether the proviso protects Handbills C and D, which identify the pri- mary dispute on one side, but include the unrelated NTB and CAB information on the other side to further coerce Delta to cease subcontracting with Statewide. For the reasons set forth below, we find that the proviso does not protect such publicity. As noted above, the proviso states that nothing in Section 8(b)(4) shall be construed to prohibit "publicity, other than picketing, for the purpose of truthfully advising the public" of the nature of the primary labor dispute. The express language of this "for the purpose" phrase, we believe, requires that all coercive information that is contained in public- ity must be included for the purpose of truthfully advising the public of the nature of the primary dispute. Information that attacks a secondary em- ployer for reasons unrelated to that employer's role in the primary dispute is not the type of informa- tion the proviso was addressing. This reading of the proviso not only accords with the plain mean- ing of the "for the purpose" phrase, but also con- forms to Congress' purpose in enacting Section 8(b)(4). 9 For, we note that Section 8(b)(4) was en- acted primarily because Congress believed that neutral (secondary) employers should be protected from becoming involved in labor disputes not their own-and similarly that a union's ability to enmesh neutrals in other employers' labor disputes should be limited as much as possible.' ° By interpreting s We note that this case would be entirely different if the NTB and CAB information on Delta was published on the handbills because Re- spondent had a primary dispute with Delta over Delta's accident record and wanted to force Delta to improve the safeness of its airplanes. Then, Respondent would be publishing the information for a primary object and the proscriptions of Sec. 8(b)(4) would not apply. However, as noted above, it admits that it published that information for a secondary pur- pose. 9 We agree with Member Jenkins' analysis of the "for the purpose" language of the publicity proviso and his discussion of the legislative his- tory of the proviso as set forth in his separate opinion. 10 Wadsworth Building Company, 81 NLRB 802 (1949); Cement Masons Union Local 337 (California Association of Employers), 190 NLRB 261 (1971). enfd. 468 F.2d 1187 (9th Cir. 1972). the proviso to require that all coercive information on handbills be for the purpose of truthfully advis- ing the public of the nature of the primary dispute, and thereby prohibiting a union from attacking a secondary employer on grounds totally unrelated to the primary dispute, we believe we are advanc- ing the congressional objective of insulating sec- ondary employers." Indeed, a contrary interpreta- tion of the proviso's "for the purpose" phrase would, in fact, extend the permissive area of sec- ondary activity, in direct contradiction to Con- gress' purpose in enacting and later amending Sec- tion 8(b)(4). Here, since the NTB and CAB information on Respondent's handbills pertains only to Delta and is totally unrelated to Delta's connection with Re- spondent's primary labor dispute, it cannot be said that Respondent included the statistical information in its handbills "for the purpose of truthfully advis- ing the public" of the nature of its primary dispute with Statewide. In fact, the inclusion of this statisti- cal information tends to be misleading as to the nature of Respondent's primary dispute, for it im- plies that, in addition to its dispute with Statewide, Respondent has an independent dispute with Delta over Delta's flying record; yet, the circumstances show, and Respondent admits, that Respondent's only dispute with Delta is over Delta's decision to subcontract with Statewide. 12 Accordingly, we II We wish to emphasize that had Respondent's handbills contained noncoercive information which was unrelated to the primary dispute, the inclusion of the noncoercive matter would not in and of itself remove the handbills from the protection of the proviso. Under our interpretation of the statute, publicity, whether related to the primary dispute or not, which does not threaten, restrain, or coerce any person engaged in com- merce is not violative of Sec. 8(b)4Xii) and therefore need not depend on the publicity proviso for protection. i2 In this connection, we note that the public might believe that, since the NTB and CAB information pertains only to Delta, Respondent was urging a boycott of Delta for two purposes- () to force Delta to cease doing business with Statewide, and (2) to force Delta to improve its "poor" flying record-when in fact only the former object was being sought. Our concern with the misleading effect produced by Respondent's in- clusion of the NTB and CAB information in its handbills is similar to that expressed by the Board and the Supreme Court in N.L.R.B. v. Local Union Na 1229, International Brotherhood of Electrical Workers [Jefferson Standard Broadcasting Company], 346 U.S. 464 (1953). In that case, tech- nicians employed by a radio and television station picketed the station during contract negotiations to protest the company's refusal to agree to arbitration for discharges. After 6 weeks of picketing, several technicians distributed a handbill bearing the signature "WBT Technicians" which attacked the quality of the company's product and its business policies. The company discharged 10 technicians for sponsoring or distributing the handbill. The Board found that nine of the discharged employees had sponsored or distributed the handbill, and that inl doing so they had failed to disclose their ultimate purpose-"to extract a concession from the em- ployer with respect to the terms of their employment"-and instead "purported to speak as experts, in the interest of consumers and the public at large." Jefferson Standard Broadcasting Company, 94 NLRB 1507, 1511 (1951). The Board found the handbill's subject matter unrelat- ed to the technicians' employment relationship and therefore unprotected under Sec. 7 of the Act. The Supreme Court agreed, finding that the ex- Continued 998 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 find that Handbills C and D by containing the co- ercive and unrelated NTB and CAB information were not "for the purpose of truthfully advising the public" within the meaning of the publicity proviso as interpreted above, and, therefore, Re- spondent's distribution of these handbills violated Section 8(b)(4)ii)(B) of the Act. 1 3 For the same reasons that we find the distribu- tion of Handbills A and C violative of Section 8(b)(4)(ii)(B), we also find the publication of these handbills in the union newspapers violative of that section. ' 4 istence of a labor dispute did not justify the technicians' attack on the company's product and policies. In particular, the Court noted that: In contrast to their claims on the picket line as to the labor contro- versy, their handbill of August 24 omitted all reference to it. The handbill diverted attention from the labor controversy. It attacked public policies of the company which had no discernible relation to that controversy. The only connection between the handbill and the labor controversy was an ultimate and undisclosed purpose or motive on the part of some of the sponsors that, by the hoped-for financial pressure, the attack might extract from the company some future concession. [346 U.S. at 476-477.] While Local Union No. 1229 involved the application of Sec. 7, we find its analysis relevant in that the technicians' handbill was deemed to be unprotected in the absence of a nexus between the source of the labor dispute and the subject matter of the technicians' appeal to the public. i" Since Chairman Van de Water and Member Hunter agree that the distribution of Handbill C violated Sec. 8(bX4)(iiXB) because it contained the coercive and unrelated NTB and CAB information, they find it un- necessary either to consider whether that handbill also failed to sufficient- ly identify the primary dispute or to pass on the Board's holdings in Flor- ida Gul Coast Building Trades Council AFL-CIO (The Edward J. DeBar- tolo Corporation), 252 NLRB 702 (1980), enfd. 662 F.2d 264 (4th Cir. 1981), or K-Mart Corporation, 257 NLRB 86 (1981). " We believe that Member Jenkins, in finding the publication of Handbills A and C to be lawful, relies on an inconsistent application of Sec. 8(bX4XiiXB) and a strained analogy to lawful secondary consumer picketing. As stated earlier, a union violates Sec. 8(bX4XiiXB) by engag- ing in conduct which threatens, coerces, or restrains a secondary employ- er with an object of forcing or requiring the secondary employer to cease doing business with any other person. Member Jenkins joins us m finding that the distribution of Handbills A and C to the public at Delta's facili- ties was coercive. He also admits that Respondent's publication of the handbills in its newspapers was for a proscribed object, but maintains that such publication did not threaten, coerce, or restrain Delta within the meaning of Sec. 8(bX4XiiXB). We fail to see why the message contained in the unlawfully distributed handbills should be treated any differently when disseminated in the form of advertisements in Respondent's news- papers. Under Sec. 8(bX4XiiXB), a union engages in coercion when it imposes economic pressure against a secondary employer that is designed to in- flict injury on the secondary employer's business. As pan of its urging of a total consumer boycott of Delta, Respondent published Handbills A and C which contain the unmistakable message to potential customers that they should be concerned for their safety in light of D-lta's accident record. Viewed in the context of the nature of Delta's business and the serious consequences commonly associated with aircraft accidents, the effect of Respondent's appeal in this newspaper advertisement was clear- ly to coerce Delta. Respondent's pubhcation of the information contained in Handbills A and C is precisely the type of secondary activity which Congress intend- ed to prohibit under Sec. 8(bX4XiiXB). The newspaper advertisements are part of Respondent's effort to institute a total consumer boycott de- signed to cut off Delta's business and force it to cease dealing with, or put pressure on, Statewide. The publication of Handbills A and C bears little resemblance to the secondary consumer picketing found to be lawful in N.LR.B. v. Fruit and Vegetable Packers & Warehoisemen, Local 76( and Joint Council No. 28 of jIT [Tree Fruits Labor Relations Commit- tee Inc], 377 U.S. 58 (1964). The Supreme Court's holding in Tree Fruits that consumer picketing limited to the struck prodsuct did not violate Sec. Respondent further contends that if the handbill- ing and advertisements are not privileged under the proviso, they are nevertheless protected by the first amendment to the Constitution and thus cannot be found unlawful by the Board. We have consistently taken the position that, as an administrative agency created by Congress, we will presume the constitu- tionality of the Act we are charged with adminis- tering, absent binding court decisions to the con- trary.1 5 Since we have found that Respondent's conduct is unlawful under Section 8(b)(4) because it is coercive and engaged in for a secondary object, and is not saved by the publicity proviso, we shall presume that our finding of a violation here is in accordance with the Constitution and Congress' intent to outlaw secondary boycotts. 6 AMENDED CONCLUSIONS OF LAW Based on the foregoing, the Board adopts the Administrative Law Judge's Conclusions of Law, as modified below: Substitute the following for Conclusions of Law 3: "3. Respondent, by handbilling the terminal and ticket offices of Delta and by advertising in the Service Union Reporter and the Service Union Re- 8(b(4)(iiXB) was based on the close relationship between the union's appeal and the primary dispute. As published in Respondent's newspa- pers, Handbill A fails to mention Statewide at all, and Handbill C makes an appeal to boycott Delta for reasons unrelated to Delta's connection with the primary dispute. Thus. it can hardly be said that the appeal em- bodied in the advertisements is "closely confined to the primary dispute." Id. at 72. Member Jenkins states that Respondent's publication of its boycott appeal in its own newspapers results in a trivial impact on the neutral's business and does not materially expand the scope of the pnmary dispute. This view appears to be based on the belief that the union newspapers reach a limited audience and therefore are not likely to result in inlury to the neutral. We find this view to be contrary to both the statute and re- ality. At issue is a union's appeal for public assistance in forcing the sec- ondary employer to cooperate with the union in its primary dispute. Part of that public appeal appears in advertisements in the union's newspapers. The publicity proviso expressly provides that for the purposes of Sec. S(bX4) the term "public" includes members of a labor organization. Fur- ther, by publishing Handbills A and C and carrying its appeal to boycott Delta to a broader segment of the public, Respondent clearly expanded the scope of the primary dispute. Since the effect of the newspaper ad- vertisements is to enmesh Delta in the primary dispute between Respond- ent and Statewide, we find that Respondent's publication of Handbills A and C coerced Delta within the meaning of Sec. 8(bX4XiiXB) '6 Americon Federation of Television and Radio Artists. etc. (Great West- ern Broadcasting Corporation d/bla KXTV), 150 NLRB 467 (1964); Pet, Incorporated, 244 NLRB 96 (1979). Although, as Respondent notes, in Pet, Incorporated the Board stated that it would reach the first amend- ment issue if it found the respondent union's conduct was not protected by the publicity proviso, in that case the Board had not passed on wheth- er the respondent union's conduct was coercive under Sec. 8(bX4). Here, we have found Respondent's conduct unlawful under Sec. 8(bX4) and not protected by the proviso Thus, based on our policy as stated above, we shall presume that the finding that Respondent's conduct violates Sec. 8(bX4) accords with the Constitution. '° Although we thus find it unnecessary here to reach or pass upon whether Respondent's conduct is protected by the first amendment to the Constitution, we expressly reject the Administrative Law Judge's han- dling of this first amendment issue. 999 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porter, Political Action Report with handbills (as described herein) and advertisements that contain information directed solely at Delta Air Lines, Inc., and totally unrelated to that employer's connection with Respondent's primary labor dispute with Statewide, where an object thereof is to force or require Delta Air Lines to cease doing business with Statewide Maintenance Corporation, violated Section 8(b)(4)(ii)(B) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and set out in full below, and hereby orders that the Respondent, Hospital and Service Employ- ees Union, Service Employees International Union, AFL-CIO, Local 399, its officers, agents, and rep- resentatives, shall: 1. Cease and desist from: (a) Distributing handbills and publishing adver- tisements which contain information directed solely at Delta Air Lines, Inc., and totally unrelated to that employer's connection with Respondent's pri- mary labor dispute with Statewide Maintenance Corporation, where an object is to force or require Delta Air Lines, Inc., to cease doing business with Statewide Maintenance Corporation. (b) In any like or related manner threatening, re- straining, or coercing Delta Air Lines, Inc., or any other person engaged in commerce where an object thereof is to force or require Delta Air Lines, Inc., or any other person to cease doing business with Statewide Maintenance Corporation. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its offices and meeting places and publish in Service Union Reporter and Service Union Reporter, Political Action Report attached copies of the notice marked "Appendix IV." 1 7 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative, shall be posted and published by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. '? In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 31 for posting by Delta Air Lines, Inc., the latter willing, at all places where notices to its employees are customar- ily posted. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER JENKINS, concurring in part and dissent- ing in part: The case before us presents difficult, but impor- tant, issues to be resolved concerning the second- ary boycott provisions of the Act. Because my views do not correspond entirely with those of my colleagues, I have decided that a separate statement of my position is necessary. Our inquiry is directed first to a resolution as to whether the various acts of handbilling engaged in by the Union and discussed, infra, are proscribed by Section 8(b)(4)(ii)(B) of the Act. Second, we are asked to determine whether or not the dissemina- tion in the Union's newspaper of the information contained in the handbills is violative of the Act. In the following paragraphs, I have attempted to ex- plain the reasons for my conclusions as to each of these issues and to discuss whatever differences I perceive to exist between myself and my col- leagues. A. The Handbilling On December 16, 1977, Delta Airlines lawfully terminated its janitorial service subcontract with National Cleaning Company (herein called Nation- al) and subcontracted the janitorial work for its Los Angeles Airport facilities with Statewide Maintenance Corporation (herein called Statewide). National had a collective-bargaining agreement with Respondent; Statewide did not. As a result of Delta's termination of its subcontract with National and its assumption of a subcontract with Statewide, a number of Respondent's members, employed by National, were laid off.'8 Respondent therefore has a primary labor dispute with Statewide. Its dispute with Delta is secondary in nature. From September 23, 1977, to March 1, 1978, Re- spondent distributed handbills at Delta's Los Ange- les Airport facilities and its downtown Los Angeles ticket office urging the public not to fly Delta Air- lines. Four different handbills were distributed. The first two handbills failed to identify the primary 'I Five of National's six employees were laid off when Statewide com- menced operations at Delta's Los Angeles Airport facilities. A sixth Na- tional employee was transferred. All six employees were members of Re- spondent Union. 1000 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 dispute and made no mention of any employer other than Delta. These handbills failed to identify adequately the primary labor dispute and thus failed to meet the requirements for protection under the publicity proviso of Section 8(b)(4)(ii)(B). 19 Because they urged a secondary boycott by coercive means, these handbills violated the Act. My colleagues and I are in agreement as to the result reached on these two handbills. The treatment of the third and fourth handbills presents more of a problem, since they meet the re- quirement of identifying the primary dispute. How- ever, in addition to a statement of the nature of its primary dispute with Statewide and a request that the public not fly Delta Airlines, both handbills make reference to Delta's alleged accident record. The handbills contain the following statement: "Let's Look at the Accident Record." Below this statement the handbill lists what purported to be Delta's accident record from January 13, 1963, to May 27, 1976, and the number of consumer com- plaints Delta had received from July 1976 to July 1977. Respondent maintains, and Delta has not shown otherwise, that this information is truthful and was lawfully obtained from the public records of the United States Civil Aeronautics Board and National Transportation Board. We are thus pre- sented with the question whether a handbill, which otherwise meets all the requirements for protection under the publicity proviso of Section 8(b)(4)(ii)(B), is proscribed when it includes addi- tional information which is meant to injure the sec- ondary employer and is not conceivably related to the primary labor dispute. Contrary to the arguments of my colleague, Member Zimmerman, I conclude that the inclusion of the additional and unrelated information re- moves the third and fourth handbills from the shel- ter of the publicity proviso. In reaching this con- clusion, I do not believe, as Member Zimmerman insists, that I have misconstrued the proviso, mis- read the legislative history, misapplied precedent, or ignored constitutional issues. Rather, I believe that a serious and thorough examination of the rel- evant authority fairly compels the conclusion that the handbills at issue in this case are not protected by the publicity proviso. Our initial focus must be the specific language of Section 8(b)(4)(ii)(B) and, particularly, its second proviso: 8(b) It shall be an unfair labor practice for a labor organization or its agents- 19 Honolulu Typographical Union No. 37, AFL-CIO (Hawaii Press News- papers. Inc.), 167 NLRB 1030 (1967). (4) . . . (ii) to threaten, coerce, or restrain any person engaged in commerce or in an in- dustry 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 sec- tion 9: . . .Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to pro- hibit publicity, other than picketing, for the purpose of truthfully advising the public, in- cluding 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 establish- ment of the employer engaged in such distri- bution. ... The statute first prohibits coercive conduct (Sec. 8(b)(4Xii)), undertaken with secondary objectives (Sec. 8(b)(4)(ii)(B)). The statute, in its "publicity proviso," then exempts a class of activities, which would otherwise be prohibited, from the reach of the proscription. No member of this Board would hold that the third and fourth handbills do not fall within the general proscription of Section 8(b)(4)(ii)(B); if the handbills are protected, there- fore, they must fall within the language of the pub- licity proviso. In other words, the third and fourth handbills must be "publicity, other than picketing, for the purpose of truthfully advising the public . . .that a product or products are produced by an employer with whom the labor organization has a 1001 DECISIONS OF NATIONAL LABOR RELATIONS BOARD primary dispute and are distributed by another em- ployer." The third and fourth handbills are clearly "pub- licity, other than picketing." They are also, we must assume, truthful. However, it is equally clear that the Delta's accident and consumer complaint record, was not presented 'for the purpose of. .. advising the public ... that a product or products are produced by an employer with whom the labor organi- zation has a primary dispute and are distributed by another employer. " Member Zimmerman would not read "for the purpose of" in the statute as stating a requirement for protection under the publicity proviso. In doing so, however, he is forced to endorse a fragmentary and internally inconsistent construction of the pro- viso's language. It is an elementary canon of statu- tory interpretation that each word in a statute will be presumed to be meaningful and to have been purposely included. 20 Thus, the Board has held that the statutory language "publicity . . . for the purpose of truthfully advising the public" imposes a requirement that the publicity be truthful.2 1 Simi- larly, we have held that the statutory language "advising . . . that a product or products are pro- duced by an employer with whom the labor orga- nization has a primary dispute and are distributed by another employer" imposes a requirement that the union clearly identify the nature of its primary labor dispute and must precisely identify the pri- mary employer.2 2 Indeed, it is on the basis of this requirement that we hold, with Member Zimmer- man's concurrence, that Respondent's first two handbills fall outside the proviso's protection. It would surely be incongruous not to read the words "publicity . . . for the purpose of" as simi- larly stating a requirement for inclusion within the proviso; specifically, imposing a requirement that the publicity be presented for the purpose of advis- ing that a product is produced by an employer with which a union has a labor dispute and is dis- tributed by another employer. Since the handbills distributed by Respondent contained information which was not presented for this protected pur- pose, but instead presented solely for the purpose of undermining the public's confidence in Delta due to practices which are not conceivably con- 20 United States v. Menasche, 348 U.S. 528, 538-539 (1955); Sands, 2A Statutes and Statutory Interpretation 63 (1973). 21 United Steelworkers of America. AFL-CIO-CLC (Pet Incorporated), 244 NLRB 96 (1979), enforcement denied on other grounds 641 F.2d 545 (8th Cir. 1981); Local 248, Meat & Allied Food Workers, a/w Meatcutters (Service Food Stores, Inc.), 230 NLRB 189 (1977); Plumbers Steanfitters, d Pipefitters Local No. 155 (The Kroger Co.), 195 NLRB 900 (1972); Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, etc., Local 537 (Jack M. Lohman. d/b/a Lohman Sales Compa- ny), 132 NLRB 901 (1961). a2 See fn. 19, supra. nected to Delta's relationship to the primary labor dispute, the handbills do not meet this requirement for protection which the language of the proviso imposes. Where the meaning of a statute is clear on its face, as is the case with the "for the purpose of' requirement of the publicity proviso, there is no need to resort to an analysis of the legislative histo- ry.2 3 However, because my colleague, Member Zimmerman, relies so heavily on the legislative his- tory of the publicity proviso as support for his view that Respondent's third and fourth handbills are protected, a closer examination of that legisla- tive history is desirable. The legislative history of the publicity proviso is indeed "limited," as Member Zimmerman admits. Nevertheless, it is not quite as limited as he implies. Member Zimmerman cites two remarks of Senator John F. Kennedy, chairman of the Conference Committee established to resolve differences be- tween the House and Senate versions of the Labor- Management Reporting and Disclosure Act of 1959. In the first of these remarks, Senator Kenne- dy states that the original House bill 24 would have interfered with freedom of speech by preventing labor organizations from appealing to the general public for assistance in a labor dispute. 2 5 In the second statement quoted by Member Zimmerman, Senator Kennedy notes that the compromise bill, which included the publicity proviso, permits unions "to conduct informational activity short of picketing" and allows unions to "carry on all pub- licity short of having ambulatory picketing in front of a secondary site [emphasis supplied]." 2 6 Initially, it is obvious that our holding regarding Respondent's handbilling does not prevent unions from appealing to the general public for assistance in a labor dispute. We hold merely that such ap- peals must conform to the requirements of the pub- licity proviso, as we have held many times in the past.27 Secondly, while Senator Kennedy's remark that unions may carry on "all publicity" short of picketing might, standing alone, tend to support Member Zimmerman's interpretation of the public- ity proviso, it does not, in fact, stand alone. It stands with the language of the proviso itself, which plainly does not permit unions to carry on "all publicity." Instead, as the Board has consist- ently held, the proviso allows unions to carry on only publicity which meets all the requirements za Packard Motor Car Co. v. N.LR.B., 330 U.S. 485, 492 (1947); Ca- minetti v. United States, 242 U.S. 470, 485 (1917); Sands, 2A Statutes and Statutory Construction 4, 48 (1973). 24 The Landrum-Griffin bill, HR 8400. 26 105 Cong. Rec. 16591; 11 Leg. Hist. 1708 (LMRDA, 1959). 26 105 Cong. Rec. 17898-17899; 11 Leg. Hist. 1432. 27 See fns. 19, 21, and 22, supra. 1002 HOSPITAL AND SERVICE EMPLOYEES. LOCAL 399 which the proviso sets forth. The logic of Member Zimmerman's interpretation of the legislative histo- ry reads out of the proviso all requirements for in- clusion, including, of course, those requirements, such as truthfulness and the identification of the primary employer, which Member Zimmerman ac- knowledges to be mandated by the clear language of the proviso. There is, in addition, another remark by Senator Kennedy which sheds more light on Congress' intent in adding the publicity proviso to the origi- nal House version of Section 8(b)(4). In addressing the Senate on the results of the Conference Com- mittee, Senator Kennedy noted that: [T]he House bill prohibited the union from carrying on any kind of activity to disseminate informational material to secondary sites. They could not say that there was a strike in a primary plant. We quite obviously are opposed to their af- fecting liberties in a secondary strike or affect- ing employees joining, but the House language prohibited not only secondary picketing, but even the handing out of handbills or even taking out an advertisement in a newspaper. Under the language of the conference, we agreed there would not be picketing at a sec- ondary site. What was permitted was the giving out of handbills or information through the radio, and so forth. [Emphasis supplied.] 28 As with the statements quoted by Member Zim- merman, the above remark does not mention any restriction on the nonpicketing publicity of a union at a secondary site. Since the proviso plainly does impose some restrictions, Senator Kennedy's state- ment cannot reasonably be read as support for re- fusing to give effect to one of those restrictions, while giving effect to the others. Senator Kenne- dy's above-quoted remark does indicate, however, that the Senate was primarily concerned that the language of the House bill would prevent unions from publicizing the fact that there was a strike in a primary plant. As Senator Kennedy informed the Senate, this concern lead to the inclusion of the publicity proviso. Our reading of the proviso fully appreciates this concern and does not, in any manner, prevent a union from distributing truthful information conceriing the primary labor dispute and its relation to the neutral business. I believe that Member Zimmerman's fears of constitutional conflict are unnecessary. Our conclu- sion that Respondent's handbilling constitutes an unfair labor practice does not lead us into conflict with the first amendment. In numerous cases, the :2 105 Cong Rec. 16254; 11 Leg. Hist. 1388-89 (LMRDA, 1959). Supreme Court has determined that a union's speech may be restricted under the Act, where the restriction is carefully tailored to prevent the un- lawful coercion of neutral businesses and employ- ees. 29 Moreover, I can see no substantive constitu- tional difference between our holding that Re- spondent's third and fourth handbills violate the statute because they fail to meet the "for the pur- pose of" requirement of the publicity proviso, and our holding, which Member Zimmerman joins, that Respondent's first two handbills violate the statute because they fail to meet the proviso's requirement that the primary labor dispute clearly be identified. In either case, union speech is restricted; in either case, it is restricted because the statutory require- ments for protection under the proviso are not met. And, in either case, the restriction on union speech is necessary to implement the congressional objec- tive of preventing economic injury to neutrals in labor disputes which are not of their own making. The Board has established a sound policy of as- suming the constitutionality of the Act which the Board was created to enforce.3 0 Member Zimmer- man's doubts, which I do not share, concerning the constitutionality of our holding regarding Respond- ent's third and fourth handbills, are best resolved in the more appropriate forum of the Federal courts, at least where the clear language of the Act re- quires, as in this case, a single interpretation. I conclude, therefore, that Respondent's third and fourth handbills, by failing to meet the "for the purpose of" requirement of the publicity proviso, are not exempted from the prohibition of coercive secondary boycott activity under Section 8(b)(4)(ii)(B) and their distribution constitutes an unfair labor practice under that statute. B. The Newspaper Publications We turn now to the question whether the Union's publication in its own newspapers3 1 of the request to boycott Delta, coupled with publication of Delta's purported accident and consumer com- plaint record, violates Section 8(b)(4)(ii)(B) of the Act. As noted above, I conclude that it does not. 29 See, e.g., N.L.R.B. v. Retail Store Employees Union. Local 1001. Retail Clerks [Safeco Title Insurance Co.], 447 U.S. 607 (1980); American Radio Assn. v. Mobile Steamship Assn., 419 U.S. 215 (1974); International Brotherhood of Electrical Workers. et al. [Giorgi Construction Co] v. N.L.R.B., 341 U.S. 694 (1961); Bakery Drivers Local v. Wohl, 315 U.S. 769, 776-778 (1942) (Douglas. J., concurring). so Pet Incorporated. supra: American Federation of Television and Radio Artists. San Francisco Local. et aL (Great Western Broadcasting Corpora- tion. d/b/a KXTV), 150 NLRB 467 (1964). s' The statements at issue in this case were published in the Service Union Reporter and the Service Union Reporter, Political Action Report, publications of the California State Council of Service Employ- ees, the Eastern Journal. a publication of the Eastern Conference of Serv- ice Employee Unions, and the New York State Service Employee, pub- lished by the New York State Service Employees Council. 1003 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the Board to find that a union's conduct is an unfair labor practice under Section 8(b)(4)(ii)(B), we must find that the challenged conduct was en- gaged in for the purpose of forcing or requiring a neutral business to cease dealing with another busi- ness and that the union pursued this objective by threatening, coercing, or restraining the neutral business. While the publication in Respondent's newspapers of Delta's accident and consumer com- plaint record, along with the admonition to boycott Delta, was clearly part of Respondent's effort to force Delta to cease doing business with Statewide, it did not "threaten, coerce, or restrain" Delta within the meaning of Section 8(b)(4)(iiXB). As the Supreme Court explained in N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760, and Joint Council No. 28 of IBT [Tree Fruits Labor Relations Committee],3 2 not every form of union pressure with a secondary objective is "coer- cive." In Tree Fruits the Court found that Section 8(bX4)(ii)(B) was not intended by Congress to pro- hibit all forms of picketing at secondary sites. Peaceful picketing, directed solely at the struck product, was held by the Court to be outside the statute's proscription.3 3 Such restricted picketing, the Court reasoned, is not "attended by the abuses at which the statute was directed,"3 4 and, there- fore, "does not threaten, coerce, or restrain" the neutral business. a In so construing the statute, the Supreme Court did not create an "exception" to the secondary boycott proscription of Section 8(b)4)(ii)(B). Rather, as the United States Court of Appeals for the District of Columbia has noted, the Supreme Court "construed the statute and identi- fied a type of consumer boycott which Congress had never intended to prohibit." 3 6 More recently, in N.L.R.B. v. Retail Store Em- ployees Union, Local 1001 [Safeco Title Insurance Co. 3 S7 the Supreme Court reaffirmed and clarified its holding in Tree Fruits. In Safeco the Court deter- mined that a union "coerces" a neutral business when it engages in a consumer boycott which goes beyond the struck product or which will foreseea- bly cause "ruin or substantial loss" to the neutral.3 8 The Court in Safeco thus pointed to the gravamen of "coercion" under Section 8(b)(4)(ii)(B): conduct which has a reasonably foreseeable consequence of forcing a neutral business into a labor dispute which is not its own. Thus, the question which we must answer, whether publication in Respondent's " 377 U.S. 58 (1964). "' Id. at 63. " Id. at 64. 's Id. at 71. " Teamsters Local 812 [Monarch Long Beach Corp.] v. N.L.R.B., 105 LRRM 2658, 90 LC 1 12,417 (D.C Cir. 1980). "7 447 U.S. 607 (1980) "S 447 U.S. at 614. own union newspapers of Delta's accident and con- sumer complaint record and the admonition to boy- cott Delta amounted to "coercion" of Delta, goes not to Respondent's motives "but to the nature and foreseeable consequences of the pressure which the union actually placed" on Delta.3 9 Publication of information and admonitions in a union's own newspapers does not have a reason- ably foreseeable consequence of drawing a neutral business into a labor dispute not its own. Like con- sumer picketing which is limited to the struck product, publication of information and admoni- tions in a union's own newspapers may be expected to have but a limited impact on the business of the neutral. Nor does it materially expand the scope of the primary dispute, since the publication is de- signed to reach neither consumers nor neutral em- ployees. The secondary boycott provisions of the Labor-Management Reporting and Disclosure Act of 1959 were aimed at preventing the expansion of labor disputes beyond the principal combatants and preventing economic injury to "innocent" business and employees. The publication of information and admonitions in the newspapers of the primary union does not foster such expansion or injury; the foreeable impact of such intraunion communication on the neutral business is trivial. For these reasons, the challenged newspaper publications are not "attended by the abuses at which the statute was directed," 40 and, therefore, cannot be said to be "coercive" within the meaning of Section 8(b)(4Xii)(B). Following the Supreme Court's reasoning in Tree Fruits and Safeco, I con- clude that Congress did not intend Section 8(b)(4)(ii)(B) to reach the publication of informa- tion and admonitions in a union's own newspapers. Moreover, restrictions on a union's right to engage in communicative activities raise complex and serious constitutional questions. Where Con- gress has spoken clearly, this Board will follow its established policy of assuming the constitutionality of the Act.4' But where, as in this case regarding potential restrictions on a union's use of its own newspapers, the statute does not require a finding that Congress intended to limit speech, it would be inappropriate for this Board to infer such restric- tions. Indeed, our finding of such restrictions would be particularly inappropriate in this case, where, as noted above, the foreseeable impact, if any, on the neutral employer is trivial. Accordingly, I would hold that Respondent's publication, in its own newspapers, of Delta's acci- dent and consumer record and the admonition to "s Teamsters Local 812 v. N.LR.B.. supra, 105 LRRM at 2666. 40 Tree Fruits supra at 64. " See fn. 30, supra 1004 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 boycott Delta does not violate Section 8(bX4Xii)(B) of the Act.4 2 MEMBER ZIMMERMAN, concurring in part and dis- senting in part: The majority today adopts an inordinately narrow interpretation of the "publicity" proviso to Section 8(bX4) of the Act.43 It unduly restricts the content of a union's appeal to the customers of a secondary employer who uses the services of or sells goods produced by a primary employer with whom that union has a labor dispute. The majority holds that all apparently coercive information on handbills, or in other nonpicketing publicity, aimed at a secondary employer must relate to the primary dispute in order for such publicity to be privileged ·' Member Zimmerman finds the publication of the material contained in the first handbill to be violative of Sec. 8(bX4XiiXB) on the grounds that this material failed to identify adequately the nature of Respondent's primary dispute and the identity of the primary employer. I cannot agree. As I have noted above, the requirements of the publicity proviso must be met only where a union's publicity is otherwise proscribed under Sec. 8(bX4XiiXB). The publication of information in a union's own newspapers is not so proscribed. I would therefore find that none of Respondent's newspaper publications constitutes a violation of the statute. Member Zimmerman insists upon a distinction between the "placing of the advertisements" and "agreeing to run them." Under the facts of the instant case, this appears to me to be a distinction without a difference. The specific language of the complaint is that Respondent "caused to be published" in its newspapers the material contained in the handbills. Ob- viously, the complaint is addressed to the Respondent's actions in placing the advertisements. Moreover, Sec. 8(bX4Xii)B) provides sanctions only against "a labor organization or its agents." It could not, therefore, pro- vide a basis for the finding of an unfair practice by a newspaper that was not published by a labor organization. The only circumstance in which a newspaper could, under any inter- pretation of Sec. 8(bX4Xii)(B), commit an unfair labor practice by "agree- ing to run" an advertisement is where the newspaper, as in this case, is published by a labor organization. In such cases, however, the distinction between placing an advertisement and agreeing to run it is blurred to the point of extinction. '" The relevant text of Sec. 8(bX4) provides: (b) It shall be an unfair labor practice for a labor organization or its agents- (ii) to threaten, coerce, or restrain any person engaged in com- merce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring any person to cease using, sell- ing, 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 pro- visions of Section 9 .... The publicity proviso to Sec. 8(bX4) states: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organiza- tion, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distribut- ed 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 serv- ices, at the establishment of the employer engaged in such distribu- tion. under the proviso. In so doing, it misconstrues the language of the proviso, misreads its legislative his- tory, misapplies Board precedent, and mistakenly ignores serious constitutional issues. I cannot agree that the proviso must be con- strued so as to remove from its protection publicity which is limited to factually accurate and truthful statements, and is placed in the context of the pri- mary dispute, merely because such material may be unrelated to the primary dispute. Rather, I would find that once a union identifies the primary em- ployer with whom it has a dispute, and the prima- ry's relationship to the secondary employer it asks customers to boycott, it may include additional in- formation related solely to its request to cease trad- ing with the secondary, at least so long as that in- formation, as here, is truthful. In interpreting the proviso's requirement that publicity be "for the purpose of truthfully advising the public" of a primary labor dispute, I look to the language of the proviso; its legislative histo- ry,4 4 particularly the first amendment consider- ations underlying its enactment; prior Board deci- sions; and the constitutional cautions of the Su- preme Court, including those most recently set forth in N.L.R.B. v. Catholic Bishop of Chicago.4 5 The Legislative History Congress incorporated the relevant provisions of Section 8(b)(4), including the proviso, into the Act as part of the 1959 Landrum-Griffin amendments. Although ample legislative history supports the broad proscriptions of secondary conduct codified in Section 8(b)(4), the legislative history of the pub- licity proviso is limited essentially to two state- ments by then Senator John F. Kennedy, who chaired the conference between the Senate and House to resolve the differences between the two versions of the bills they passed. The first statement appears in an analysis of the Senate and House bills prepared during the pro- tracted conference on the legislation. The state- ment analyzed the effects of the House-passed revi- sions to Section 8(b)(4) as follows: The House bill provides that a union may not "restrain" or "coerce" an employer where an object is to require him to cease doing busi- ness with any other employer. The prohibition reaches not only picketing but leaflets, radio 44 Unlike my colleagues, I do not believe that the meaning of the "for the purpose ofr' language in the proviso is clear on its face. The phrase is susceptible to varying interpretations and, therefore, an examination of the legislative history is required, not merely "desirable." 's 440 U.S. 490 (1979). 1005 DECISIONS OF NATIONAL LABOR RELATIONS BOARD broadcasts and newspaper advertisements, thereby interfering with freedom of speech. [O]ne of the apparent purposes of the amend- ment is to prevent unions from appealing to the general public as consumers for assistance in a labor dispute. This is a basic infringement upon freedom of expression. The portions of the House bill which have this effect are unac- ceptable.4 6 The Senate bill contained no similar proscription. Its silence condoned all peaceful activity-includ- ing picketing-aimed at inducing consumers to boycott a secondary employer. The result was a compromise in which the conferees adopted the House language and added the proviso. The conferees did not file a joint explanatory statement. Thus, when the Senate considered the legislation, the only statement concerning the intent of the compromise language finally adopted came from the conference chairman, Senator Kennedy. In remarks on the Senate floor, he summarized the relevant provisions: (c) The right to appeal to consumers by methods other than picketing asking them to refrain from buying goods made by nonunion labor and to refrain from trading with a retail- er who sells such goods. Under the Landrum-Griffin bill it would have been impossible for a union to inform the customers of a secondary employer that that employer or store was selling goods which were made under racket conditions or sweat- shop conditions, or in a plant where an eco- nomic strike was in progress. We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct information- al activity short of picketing. In other words, the union can hand out handbills at the shop, can place advertisements in newspapers, can make announcements over the radio, and can carry on all publicity short of having ambula- tory picketing in front of a secondary site.4 7 Thus, the Senate sought to permit any activity, in- cluding picketing, to persuade customers to boy- cott enterprises that sell struck goods. The compro- 46 105 Cong. Rec. 15222 (daily ed.), reprinted in II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, 1708. Senator Kennedy's further remarks, cited by Member Jenkins, supro at 1388-89, are fully consistent with and only reaffirm these comments. 4 105 Cong. Rec. 16414 (daily ed. September 3, 1959), reprinted in II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, 1432. mise embodied in the publicity proviso authorized any informational activity, short of picketing, with the same objective. Member Jenkins states the obvious when he ob- serves that the proviso "plainly does impose some restrictions." He nevertheless disregards Senator Kennedy's statements of legislative intent which demonstrate that those restrictions are to be con- fined to those expressly set out in the language of the proviso. 48 Nowhere does the proviso state, as the majority holds, that the publicity in question must in its entirety be "related to" the primary dis- pute. Rather, the proviso simply requires that the information presented must be for the purpose of publicizing the relationship between the primary dispute and the secondary employer. Once that purpose is satisfied, I can find no basis, as do my colleagues, for embellishing the proviso with an in- terpretation that prohibits a union from buttressing its appeal for a boycott of the secondary employer with additional information about that employer, at least if such information is truthful. The Supreme Court has recognized Congress' overriding concern for the first amendment rights involved in Section 8(b)(4). In its Tree Fruits4 9 de- cision, which issued 5 years after enactment of the Landrum-Griffin Act, the Court construed this sec- tion quite narrowly. The conduct at issue in Tree Fruits was consumer picketing, and the issue pre- sented was whether Section 8(b)(4)(ii) prohibited that picketing. The Court found that secondary picketing which "confined as it was to persuading customers to cease buying the product of the pri- mary employer"5 0 does not violate the statutory proscriptions. In so finding, the Court refused to "depart from [its] practice of respecting the con- gressional policy not to prohibit peaceful picketing except to curb 'isolated evils' spelled out by the Congress itself." To support this narrow construc- tion of Section 8(b)(4)'s prohibition of consumer picketing, the Court carefully reviewed the legisla- tive history of the publicity proviso. The Court concluded that: The proviso indicates no more than that the Senate conferees' constitutional doubts led Congress to authorize publicity other than 4s Member Jenkins, in his separate opinion, suggests that this interpre- tation violates the canon of statutory construction which presumes each word of a statute to have meaning. But Member Jenkins, in his interpre- tation, discerns the statutory language "for the purpose oP' to mean solely for the purpose of providing information concerning the primary dispute. He points to neither statutory language nor legislative history to support his highly restrictive interpretation. "4 N.LR.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760 and Joint Council No. 28 of lBT [Tree Fruits Labor Relations Committee, Inc.], 377 U.S. 58 (1964). 1o Tree Fruits supra at 71. 1006 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 picketing which persuades the customers of a secondary employer to stop all trading with him, but not such publicity which has the effect of cutting off his deliveries or inducing his employees to cease work.51 The unmistakable implication of the Tree Fruits decision is that a union may appeal to consumers to cease all trading with a secondary employer as long as it limits its activity to publicity. We have, of course, previously recognized that right.5 2 Today, however, the majority holds that, in ap- pealing for a consumer boycott of a secondary em- ployer, a union must confine the content of its pub- licity solely to facts related to the primary dispute. Thus, they conclude that Handbills C and D are not protected by the proviso because they contain truthful safety and consumer information about the secondary employer, Delta, which is not directly related to the primary labor dispute. This holding breaks new, and I believe, unsupportable ground. I believe the Court's construction of Section 8(b)4)(ii) dictates the conclusion that the proviso leaves it to the handbilling union to decide what in- formation concerning the secondary employer will be most effective in delivering the union's message in connection with the primary dispute, at least in- sofar as the publicity utilized is truthful and does not cause employees other than those of the pri- mary employer to stop working. Nothing in the legislative history suggests a congressional inten- tion to require a union to restrict publicity to infor- mation directly connected to the primary dispute when it attempts to persuade customers of a sec- ondary employer to stop patronizing it. By such re- striction, the majority today blurs and weakens the distinction between picketing and other publicity which Congress and the Supreme Court have so carefully maintained. This critical distinction requires that the public- ity proviso-which limits the activity prohibited by Section 8(b)(4)-be interpreted as broadly as is consistent with Congress' purpose in enacting Sec- tion 8(b)(4). The Supreme Court so acknowledged this correlation in N.L.R.B. v. Servette, Inc.,63 issued the same day as Tree Fruits, when it stated: The proviso was the outgrowth of a profound Senate concern that the unions' freedom to appeal to the public for support of their case be adequately safeguarded .... There is nothing in the legislative history which sug- rL Tree Fruits, supra at 70, 71. as International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. Milk Drivers and Dairy Employees Local 537 (Jack M. Lohman. d/b/a Lohman Sales Company), 132 NLRB 901 (1961); Plumber, Steamflrters. A Pipefitters Local No. 155 (The Kroger Co.), 195 NLRB 900 (1972). s5 377 U.S. 46 (1964). gests that the protection of the proviso was in- tended to be any narrower in coverage than the prohibition to which it is an exception, and we see no basis for attributing such an incon- gruous purpose to Congress. 5 4 The breadth of the secondary activity which the Senate had been prepared to authorize, and which led to the enactment of the proviso, contradicts a construction of the proviso that finds unlawful pub- licity which, in its entirety, is not clearly and di- rectly related to the secondary employer's role in the primary dispute.s5 The publicity proviso clear- ly envisions that secondary employers may become enmeshed in labor disputes as a result of their rela- tionship with a primary employer, provided that such entanglement neither induces the secondary's employees to halt work nor interrupts deliveries to it. The Supreme Court reaffirmed the rationale of Tree Fruits in its recent Safeco decision. s6 It re- ferred with approval to its analysis of the legisla- tive history of Section 8(b)(4), 57 while prohibiting "[p]roduct picketing that reasonably can be expect- ed to threaten neutral parties with ruin or substan- tial loss . . ,." 8 Justice Stevens concurred, making clear that the first amendment forbids content-based restrictions on speech, and joined in finding the secondary ac- tivity at issue in Safeco unlawful only because pick- eting "is a mixture of conduct and communica- tions." In emphasizing that it is the means em- ployed, rather than the ends sought, that justify disparate treatment of picketing and handbilling, Justice Stevens commented: Indeed, no doubt the principal reason why handbills containing the same message are so much less effective than labor picketing is that the former depend entirely on the persuasive force of the idea.5 9 Thus, if appeals to consumers take the form of "publicity, other than picketing," the proviso ~4 Servenc, supra at 55. Accordingly, the Court. in Servette, interpreted the proviso broadly, finding that products "produced by an employer" include products distributed by a wholesaler with whom the primary dis- pute exists. 5a Contrary to Member Jenkins' assertion, my interpretation of the leg- islative history does not bring any and all publicity within the proviso. Rather, in my view, the legislative history shows that the proviso's re- quirements must be construed narrowly and that there is no basis for the Board to establish an additional restriction that all publicity relate specifi- cally and exclusively to the primary dispute. Publicity will enjoy the pro- tection of the proviso so long as it clearly identifies the nature of the pri- mary dispute. The inclusion of additional truthful material does not un- dermine that protection. " N.LR.B. v. Retail Store Employees Union, Local 1001 lSafeco Title Insurance Co.], 447 U.S. 607 (1980). 5' Ibid. at 612-615. " Id. at 614. s' Id. at 619. 1007 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comes into play and any resultant deterrence of customers of the secondary employer will be toler- ated because of the preference afforded freedom of speech. The only caveats are those plainly specified in the proviso itself: if the appeals fail to truthfully identify the primary dispute; or if they result in the cessation of work by employees of neutrals at the site. Board and Judicial Precedent Prior Board decisions construing the publicity proviso also support a broad interpretation. The Board has repeatedly reaffirmed the principle, ini- tially enunciated in Middle South Broadcasting Co.,6 ° that the proviso permits a consumer boycott of a secondary employer's entire business and not merely a limited boycott of the product or services involved in the primary dispute.6 1 If the proviso protects a consumer boycott which extends beyond the product involved in the primary dispute, it must also protect publicity that includes informa- tion which extends beyond the primary dispute, at least as long as such information is truthful and identifies the secondary employer's connection with the primary employer. Applying that princi- ple to the instant case, Respondent properly could use information in its handbills pertaining to Delta's entire business, and need not be limited to that aspect of Delta's operation involved in the primary dispute. More recently, in Pet, Incorporated,6 2 the Board found that the United Steelworkers did not violate Section 8(b)(4)(ii)(B) by engaging in handbilling and other publicity calling for a total consumer boycott of Pet and its numerous subsidiaries and di- visions in support of a strike against one of those subsidiaries. The Board deemed it important that it was not established that the handbills and adver- tisements in question were on their face untruthful; i.e., that they substantially departed from fact or in- tended to deceive.6 In Pet supra, the Board stated that "A consumer boycott falls outside the protection of the proviso if (1) it results in refusals by employees, other than those of the primary employer, to pick up, deliver, eO Local No. 662. Radio and Television Engineers, affiliated with Interna- tional Brotherhood of Electrical Workers, AFL-CIO (Middle South Broad- casting Co.), 133 NLRB 1698, 1705, 1715-17 (1961). 6' International Union of Operating Engineers, Local No. 139, AFL- CIO, et al. (Oak Construction, Inc.), 226 NLRB 759, 760 (1976); American Federation of Television and Radio Artists San Francisco Local, and Na- tional Association of Broadcast Employees and Technicians Local 55 (Great Western Broadcasting Corporation. d/b/a KXTV), 150 NLRB 467 (1964). 62 244 NLRB 96 (1979), reversed on other grounds 641 F.2d 545 (8th Cir. 1981). 63 Pet, Incorporated. supra at 100. See also International Brotherhood of Teamsters; Chauffeurs, Warehousemen and Helpers of America, Milk Driv- ers and Dairy Employees Local 537 (Jack M. Lohman, d/b/a Lohman Sales Company), 132 NLRB 901 (1961). or transport goods or to perform services or (2) the publicity is untruthful. If either situation obtains, the publicity proviso is inapplicable." 64 A year later, in DeBartolo Corporation,6 5 the Board found that the publicity proviso protected a union's handbilling urging a total consumer boycott of all the tenants of a shopping mall in furtherance of a primary dispute with a construction company that was building a store for only one of those ten- ants. Relying in part on its reasoning in Pet, the Board concluded that, within the meaning of the proviso, a producer-distributor relationship existed between the construction company and the shop- ping mall's owner, even though it was the tenant- rather than the mall-that had engaged the con- struction company to erect the store. The Board in DeBartolo also utilized a broad reading of the pro- viso to find that the union's failure to identify the primary employer specifically by name in its hand- bill did not render the handbill untruthful, and therefore beyond the scope of the proviso. In its opinion enforcing the Board's decision, the U.S. Court of Appeals for the Fourth Circuit empha- sized that the proviso's language "is not to be read literally but instead is to be broadly construed" in order to effectuate the proviso's "clear purpose of protecting labor's ability to publicize by means other than picketing its grievances to consumers." The Board also broadly interpreted the proviso's truthfulness requirement in its subsequent decision in K-Mart Corporation.6 6 The union in that case had a primary dispute with an excavation subcon- tractor which had been engaged by a general con- tractor that was building a new store for K-Mart. The union distributed handbills requesting a con- sumer boycott of K-Mart because of the company's use of the nonunion subcontractor. The handbills, however, mentioned neither the specific general contractor that actually had hired the subcontrac- tor, nor the existence of any general contractor. The Board nevertheless decided that this omission did not render the handbills untruthful within the meaning of the proviso. According to the Board, the failure to refer to a general contractor did not create the false impression that K-Mart had hired the subcontractor, nor misleadingly imply that the union's primary dispute was with K-Mart. My reading of the "for the purpose of" clause as permitting the publicizing of truthful additional in- formation that is not directly related to the primary 64 Pet, Incorporated. supra at 100. 55 Florida Gulf Coast Building Trades Council, AFL-CIO (The Edward J. DeBartolo Corporation). 252 NLRB 702 (1980), enfd. 662 F.2d 264 (4th Cir 1981). "' Central Indiana Building and Construction Trades Council (K-Mart Corporation), 257 NLRB 86 (1981). 1008 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 dispute comports fully with the Board's reasoning as to the proviso's scope in Pet, DeBartolo, and K- Mart. Constitutional Considerations The restrictions embodied in Section 8(b)(4) closely touch first amendment guarantees. 6 7 As discussed above, the publicity proviso to that sec- tion came into being in large part to allay Senate concerns that the section's proscriptions would oth- erwise impermissibly infringe first amendment rights. These first amendment concerns are integral to my consideration of whether Respondent's con- duct was saved by the proviso. My colleagues make the anomalous assertion that, since they have found Respondent's conduct unlawful under Section 8(b)(4), they need not reach or pass upon the first amendment question unavoidably raised by their narrow interpretation of the publicity proviso. The majority blithely "presume[s] that [its] finding of a violation here is in accordance with the Constitution." I could not join in that presumption even if I could join in their interpretation of the proviso. When the Board finds that a respondent's speech (or other conduct protected by the first amendment) has violated the Act, it must then consider whether the statutory proscription relied upon accords with the first amendment's protections. The Board recognized this as the proper mode of inquiry in both Pet and DeBartolo. In those cases it declined to reach the first amendment issue only because it found the respondent union's conduct protected by the publicity proviso. Thus, the Board in Pet stated that "[R]esolution of that issue [whether the publicity in question was protected by the free speech provision of the Constitution] would be required only if we found Respondent's conduct was not protected by the publicity provi- so." 68 Likewise, in Great Western Broadcasting,6 9 the Board said that the issue of whether the first amendment protected a respondent's conduct would arise if it found the actions to be coercive and not protected by the proviso. 70 The majority's reluctance to address the first amendment implications of its interpretation of the publicity proviso in the instant case constitutes an alarming and unacknowledged departure from the 6' N.LR.B. v. Retail Store Employees Union. Local 1001 [Safeco Title Insurance Co.], 447 U.S. 607 (1980); N.LR.B. v. Fruit and Vegetable Pack- ers & Warehousemen, Local 760, and Joint Council Na 28 of IBT [Tree Fruits Labor Relations Committee. Inc.], 377 U.S. 58, 77 (1964) (concur- ring opinion, Black, J.). ta Pet, Incorporated, supra at 102. 69 American Federation of Television and Radio Artists. San Francisco Local et al (Great Western Broadcasting Corporation d/b/a KXTV), 150 NLRB 467 (1964). 7' Id. at 472. Board's well-established practice. The Board has on numerous occasions in prior decisions cogently addressed first amendment issues upon finding that a respondent's conduct violated the Act or that the first amendment did not bar the Board's assertion of jurisdiction over a particular employer.7 Our administrative responsibility requires us to regard each provision of the Act as presumptively constitutional. Particularly where the statutory lan- guage is clear, and the constitutional issue close, we must come down in favor of the validity of the statute. Thus, where the meaning of specific lan- guage in the Act is plain on its face and therefore susceptible to only one interpretation-such as the proviso's requirement that publicity truthfully iden- tify the primary dispute-the Board must, absent an indisputable constitutional infringement, con- clude that application of such plain language to a respondent's conduct does not contravene constitu- tional rights. However, when faced with statutory language which is subject to different interpreta- tions-such as the proviso's "for the purpose of" phrase-it is incumbent upon the Board to interpret the Act in a way that most accords with constitu- tional guarantees. The majority has failed to give sufficient weight to constitutional considerations in construing the ambiguity of the "for the purpose of" language, and has chosen an interpretation that impinges upon the first amendment.7 2 Unlike my colleagues, I heed the Supreme Court's admonition regarding interpretation of the Act in areas that touch upon the first amendment. In Catholic Bishop,73 the Court declared: [I]n the absence of a clear expression of Con- gress' intent . . . we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment. . .. 7 4 "i See District 1199. National Union of Hospital and Health Care Em- ployees, RWDSU. AFL-CIO (United Hospitals of Newark). 232 NLRB 443 (1977); Motherhouse of the Sisters of Charity of Cincinnati, Ohio. 232 NLRB 318 (1977); Cardinal Timothy Manning etc., 223 NLRB 1218 (1976); Roman Catholic Archdiocese of Baltimore etc., 216 NLRB 249 (1975); Henry M. Hald High School Association, etc.. 213 NLRB 415 (1974); The First Church of Christ. Scientist in Boston. Massachusetts, 194 NLRB 1006 (1972). ?* In addition, the construction of the proviso I adopt minimizes the potential constitutional infringement recognized by the Supreme Court in Safeco, supra. My colleagues' interpretation prohibits any and all state- ments directed at the neutral employer that are not directly related to the primary dispute. The construction I adopt permits such statements. re- quiring only a clear identification that the union's primary dispute is with another employer and not with the neutral employer to which the infor- mational activity is being directed. S N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490 at 507. 7' That the issue in Catholic Bishop was the Board's jurisdiction, rather than proscribed conduct, and that it involved the first amendment's reli- gion rather than free speech clause, does not lessen the principles in- volved. o1009 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That admonition, together with the legislative his- tory of the proviso, impels me to reject the unduly restrictive interpretation the majority embraces with respect to the safety and consumer informa- tion included on Handbills C and D. Application to the Instant Case Applying my interpretation of the proviso, I nonetheless find two of the four handbills distribut- ed by Respondent outside the proviso's protection. Handbills A and B did not adequately identify the primary employer, or the secondary employer's re- lationship to the primary dispute. The first two handbills made no reference to the primary em- ployer, Statewide Maintenance Company, or to any maintenance company. They not only failed to identify the nature of the primary dispute, but clearly implied that Respondent had a primary dis- pute with Delta Airlines. Thus, Handbills A and B do not even arguably satisfy the proviso's require- ment that publicity truthfully identify the neutral employer's relationship to the dispute. Supreme Court decisions in the first amendment area demon- strate that this duty to properly identify is a consti- tutionally permissible limitation on speech.7 Therefore, I join in finding that the distribution of Handbills A and B violates Section 8(b)(4)(ii)(B).7s6 Handbills C and D, however, contain appropriate identification.7 7 The parties stipulated that the 17 See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Con- sumer Council Inc, 425 U.S. 748, 771-772, fn. 24 (1976); Carey v. Brown, 447 U.S. 455 (1980). " Respondent reprinted Handbills A and C as advertisements in two of its newspapers. I join the Chairman and Members Fanning and Hunter in finding publication of Handbill A to be a violation, but since I disagree with the conclusion that the distribution of Handbill C was not protected by the publicity proviso, I do not find that publication of that handbill violated the Act. As regards the unlawful publication of Handbill A, I specifically concur in my colleagues' comments. I would make clear, however, that the violation consisted in placing the advertisements, not in agreeing to run them. Member Jenkins claims that this is a distinction without a difference, although he acknowledges that the specific language of the complaint is that Respondent "caused to be published" the material in question. Unlike Member Jenkins, I do not regard it as obvious from this language that the complaint is addressed to Respondent's actions in placing the ad- vertisements, since the complaint leaves open the question whether a union that is not party to a primary labor dispute could violate the Act if it agreed to run in its own newspaper an advertisement concerning that dispute placed by another union involved in the dispute. Obviously, had Respondent chosen to run the advertisements in newspapers of general circulation, the violation would run against Respondent, not the publisher of the newspaper. In this regard, I note that the Supreme Court has indi- cated that commercial speech, such as paid advertising, does not stand on the same constitutional footing as traditional press activities. See. e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). It is unneces- sary to reach the more troublesome issue of whether reprinting of the of- fending handbill as part of a news story concerning Respondent's activity might make out a separate violation because of Respondent's control of the newspapers involved. "7 Handbill C urged consumers to boycott Delta on the ground that the airline had caused Respondent's members to become unemployed by contracting "with a maintenance company which does not provide" Re- spondent's wages, benefits, and standards. Handbill D specifically identi- fied Statewide by name. safety statistics contained in the handbills were ac- curate. The General Counsel does not argue, and in any event has not shown, that the failure to compare Delta's safety record to that of other air- lines misled recipients of the handbills. 78 Accord- ingly, to the extent the Board finds that circulation of Handbills C and D constituted a violation, I dis- sent. In summary, I believe that the correct interpreta- tion of the publicity proviso is as follows: (A) Once a union informs the public, on the face of its handbills, of the identity of the primary em- ployer with which it has a dispute, it may proceed to request the public to boycott the secondary em- ployer; and (B) The union may choose to bolster that request by conveying to the public additional information about the secondary employer, at least where, as here, such information is factually correct. For the reasons I have set forth, I cannot join the severe content-based restrictions the majority places upon a union in efforts to achieve a consum- er boycott of a secondary employer who sells or uses the goods or services of an employer with whom that union has a dispute. I concur only in the result my colleagues reach as to the first two of Respondent's four handbills. Ts The Administrative Law Judge and the majority suggest that the presentation of the safety statistics tended to mislead the public. Even if that issue were squarely presented on this record, and it is not, I would not find a violation based on the tendency of admittedly truthful facts to mislead the public. As I have indicated, the great sensitivity of the consti- tutional issues involved and the narrowness of the legislative intent un- derlying the proviso lead me to read its terms broadly. Nowhere does the proviso indicate that otherwise truthful publicity raised in the context of a primary labor dispute would lose its protection if such publicity tends to mislead its recipients. In connection with their suggestion regarding the alleged misleading effect of the safety statistics, my colleagues rely on the Supreme Court's opinion in N.LR.B. v. Local Union No. 1229. International Brotherhood of Electrical Workers [Jefferson Standard Broadcasting CompanyJ, 346 U.S. 464 (1953). That case clearly is inapposite to an interpretation of the pro- viso of Sec. 8(bX4). The handbill distribution in that case was found not to be protected by the Act because it was not linked in any way to the ongoing labor dispute and, indeed, made no reference to it whatsoever. Instead, it simply and solely attacked the employer's product, an attack which the union was found to have purposely kept separate from its in- tentionally undisclosed labor dispute with the employer. In contrast, here Respondent publicized Delta's safety record in Handbills C and D by ex- plicitly identifying the primary labor dispute and Delta's secondary con- nection therewith. I agree that the proviso does not protect publicity that fails to mention the primary labor dispute, and for that reason I join in finding Handbills A and B outside its ambit. Were we to construe the proviso to bar publicity based on its tendency to mislead, we would step well beyond a content-based restnction to con- sideration of the effect of truthful content on its audience. Absent the clearest congressional indication of an intention to so restrict publicity, I would not do so. Such a construction would seek out a conflict between the Act and the first amendment, which the Supreme Court specifically instructs should be avoided. N.L.R.B. v. Catholic Bishop of Chicago, supra at 507. 1010 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 APPENDIX IV NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain Delta Air Lines, Inc., or any other person en- gaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Delta Air Lines, Inc., to cease doing business with Statewide Building Maintenance Corporation. HOSPITAL AND SERVICE EMPLOYEES UNION, SERVICE EMPLOYEES INTER- NATIONAL UNION, AFL-CIO, LOCAL 399 DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was briefly heard at Los Angeles, California, on July 10, 1979, although, as will appear, the case has had an extensive and indeterminate prior history before the Board. The original complaint, as later amended, issued De- cember 28, 1977, and was based on a charge filed Sep- tember 27, 1977, by Delta Air Lines, Inc., herein Delta, and alleges that Respondent, Hospital and Service Em- ployees Union, Service Employees International Union, AFL-CIO, Local 399, has engaged in unfair labor prac- tices within the meaning of Section 8(b)(4)(ii)(B) of the Act. Briefs have been submitted by all parties. Upon the entire record of the case, but not from any observation of the witnesses because there were none, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Delta Air Lines, Inc., operates from Los Angeles, California, to other States of the United States, and there is no issue herein as to its being a person engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Hospital and Service Employees Union, Service Em- ployees, International Union, AFL-CIO, Local 399, is a labor organization within the meaning of Section 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICES A. Introduction; the Issue Although the matter before me involves but a 17-page transcript, the extensive exhibits disclose that it has had a lengthy and perhaps unique history before the Board. I shall endeavor to treat this history as briefly as possible. Initially, the primary and basic issue is whether Re- spondent Union has engaged in conduct violative of Sec- tion 8(b)(4)(ii)(B) of the Act in that it engaged in hand- billing which, according to the General Counsel and Delta, was violative of the Act in that it was not con- ducted "for the purpose of truthfully advising the public" of the merits of the dispute. This is perhaps an oversimplification, but the simple issue is whether the handbills distributed by Respondent Union were, if not technically untruthful, perforce so and particularly damaging as to warrant a conclusion that, as a matter of law, they were untruthful because of the scurrilous matters they raised. B. Sequence of Events There is little or no conflict as to what has taken place herein. What appears to be the crux of the matter is that the Board, despite unanimous urging from all parties, has declined to pass upon this issue and, as a result, I have inherited it. Initially, it is in order, as I view it, to set forth the his- tory of this matter before the Board. After several amendments to the complaint all parties, on April 17, 1978, moved that the case be transferred to the Board. Attached thereto was an extensive stipulation of facts which in essence reflects the facts before the Board and presently before me. In October 1976, Delta decided to terminate a contract for janitorial services with National Cleaning Company, herein National, for maintenance service and this was duly terminated on December 16, 1976. I deem it signifi- cant that this contract, as well as a later contract de- scribed below with Statewide Building Maintenance Cor- poration, herein Statewide, covered only janitorial serv- ices at the Los Angeles office of Delta, and at its curb- side facilities at the Los Angeles airport. Neither of these contracts included any services performed on Delta equipment and more specifically on its planes. On or about December 16, 1976, Delta contracted for these same services with Statewide; the latter and Re- spondent Union have at no time been signatory to any bargaining contract. As a result, Respondent Union has since that date been engaged in a labor dispute with Statewide but has had no dispute with Delta as such. Pursuant to its dispute with Statewide, Respondent Union has distributed handbills at the two Delta loca- tions described above. These are basically not out of line and merely declare that Delta is unfair and urge the public not to fly Delta. What is deemed significant herein is the reverse side of the handbills which state: It takes more than money to fly Delta. It takes nerve. Let's look at the accident record. Date Location Plane Damage Death/Injuries 5/27/76 Atlanta, Ga... DC 8 3/3/76 Springfield, Boeing Mo.. 727 none yes none yes 101: DECISIONS OF NATIONAL LABOR RELATIONS BOARD Damage Death/Injuries none yes none yes none yes substan- yes tial none yes minor yes none yes none yes none yes none yes de- yes stroyed none yes de- yes stroyed none yes Date 9/19/67 6/24/67 3/7/67 3/30/67 2/27/66 3/4/66 3/3/66 11/24/64 3/26/64 11/1/63 8/13/63 1/14/63 1/13/63 Location Banning, Ca.. Newark, N.J.. Memphis, Tenn.. Kenner, La... New Orleans, La.. Chicago, Ill.. Birming- ham, Ala.. Baton Rouge, La.. Tampa, Fla... Atlanta, Ga... Indianapo- lis, Ind.. Tampa, Fla... Memphis, Tenn.. Plane DC 8 Convair 850 Lock- heed 362 DC 8 DC 8 DC 9 DC 6 C46 Convair 880 Convair 440 DC 6 DC 8 DC 7 Damage none substan- tial none de- stroyed substan- tial none substan- tial substan- tial minor substan- tial substan- tial substan- tial substan- tial Death/Injuries yes yes yes yes yes yes yes yes yes yes yes yes yes Total deaths-129 Total Injuries-3,680 Information from the National Transportation Board, Wash- ington, D.C., 20594--Briefs of Accidents-Delta Air-lines-All Operations-1962 to 1976 (1976 incomplete) Consumer Complaints Month and Year July 1976 August 1976 September 1976 October 1976 March 1977 April 1977 May 1977 June 1977 July 1977 TOTAL COMPLAINTS Letters per month 35 22 19 30 44 31 30 30 24 265 In addition, this handbill in toto was published in the September 1977 edition of "Service Union Reporter," a newspaper of the California State Council of Service Employees, and also in the September 1977 edition of "Service Union Reporter, Political Action Report." From October 6 through October 12, 1977, Respond- ent distributed a second handbill at the same two facili- ties of Delta. This reads as follows: It takes more than money to fly Delta. It takes nerve. Let's look at the accident record. Date Location Plane Damage Death/Injuries 5/27/76 Atlanta, DC 8 none yes Ga. Date 2/22/76 9/22/75 8/8/75 11/25/74 !1/6/74 7/3/74 7/27/74 2/21/74 2/15/74 12/21/73 11/27/73 8/20/73 7/31/73 4/1/73 2/28/73 9/28/73 7/22/72 9/30/72 2/26/72 12/20/72 3/28/72 3/19/72 5/30/72 8/18/71 8/5/71 10/9/71 9/17/69 8/2/69 5/8/69 9/4/69 6/10/69 7/22/69 1/31/69 3/16/69 6/30/68 3/20/68 2/15/68 4/15/67 Location Tampa, Fla... Texico Vortac, Tex.. Wilmington, Del.. Flushing, N.Y.. Detroit, Mich.. Atlanta, Ga... Fort Myers, Fla.. Pontiac, III.... Alexandria, La.. Lebanon, N.H.. Chattanoo- ga, Tenn.. Belle Glade, Fla.. Boston, Mass.. New York- Atlanta. Las Vegas, Nev.. Chicago, Ill.. Knoxville, Tenn.. Norfolk, Va.. Alma, Ga...... Chicago, Ill.. Little Rock, Ark.. Atlanta, Ga... Ft. Worth, Tex.. Savannah, Ga.. Spartan- burg, S.C.. Chicago, Ill.. Dallas, Tex... Atlanta, Ga... Chicago, Ill.. Jackson, Miss.. Macon, Ga... Evergreen, Ala.. Jackson- ville, Fla.. Pulaski, Va... Memphis, Tenn.. Evansville, Ind.. Chattanoo- ga, Tenn.. Milwaukee, Wis.. Plane Boeing 727 DC 8 DC 8 Boeing 727 DC 8 Lock- heed 1011 DC 8 DC 9 DC 9 DC 9 DC 9 DC 8 DC 9 DC 9 DC 8 DC 9 Convair 880 Boeing 727 DC 8 Convair 880 Convair 880 DC 9 DC 9 DC 9 Convair 880 DC 9 DC 8 DC 8 DC 8 Convair 880 Convair 440 DC 8 DC 8 DC 8 Convair 340 Convair 440 DC 6 Convair 440 yes yes yes yes yes yes yes yes yes yes yes none substan- tial none minor none substan- tial none substan- tial de- stroyed substan- tial none minor substan- tial none substan- tial none substan- tial none substan- tial none substan- tial substan- tial substan- tial substan- tial Com- plaints per month 37 27 22 30 54 39 35 38 25 307 yes yes yes yes yes yes yes yes yes yes yes yes yes 1012 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 Date Location Plane Damage Death/lInjuries 3/3/76 Spring- Boeing none yes field, 727 Mo. 2/22/76 Tampa, Boeing none yes Fla. 727 9/22/75 Texico DC 8 none yes Vortac, Tex. 8/8/75 Wil- DC 8 none yes mington, Del. 11/25/74 Flush- Boeing substan- yes ing, 727 tial N.Y. 11/16/74 Detroit, DC 8 none yes Mich. 7/3/74 Atlanta, Lock- minor yes Ga. heed 1011 7/27/74 Fort DC 8 none yes Myers, Fla. 2/21/74 Pontiac, DC 9 none yes Ill. 2/15/74 Alexan- DC 9 none yes dria, La. 12/21/73 Leba- DC 9 none yes non, N.H. 11/27/73 Chatta- DC 9 de- yes nooga, stroyed Tenn. 8/20/73 Belle DC 8 none yes Glade, Fla. 7/31/73 Boston, DC 9 de- yes Mass. stroyed 4/1/73 New DC 9 none yes York- Atlan- ta 2/28/73 Las DC 8 none yes Vegas, Nev. 9/28/73 Chicago, DC 9 substan- yes Ill. tial 7/22/72 Knox- Convair none yes ville, 880 Tenn. 9/30/72 Norfolk, Boeing minor yes Va. 727 2/26/72 Alma, DC 8 none yes Ga. 12/20/72 Chicago, Convair substan- yes I111. 880 tial 3/28/72 Little Convair none yes Rock, 880 Ark. 3/19/72 Atlanta, DC 9 substan- yes Ga. tial 5/30/72 Ft. DC 9 de- yes Worth, stroyed Tex. 8/18/71 Savan- DC 9 substan- yes nah, tial Ga. 8/5/71 Spartan- Convair none yes burg, 880 S.C. 10/9/71 Chicago, DC 9 minor yes Ill. 9/17/69 Dallas, DC 8 substan- yes Tex. tial Date Location Plane Damage Death/lInjuries 8/2/69 Atlanta, DC 8 none yes Ga. 5/8/69 Chicago, DC 8 substan- yes Ill. tial 9/4/69 Jackson, Convair none yes Miss. 880 6/10/69 Macon, Convair substan- yes Ga. 440 tial 7/22/69 Ever- DC 8 none yes green, Ala. 1/31/69 Jackson- DC 8 substan- yes ville, tial Fla. 3/16/69 Pulaski, DC 8 none yes Va. 6/30/68 Mem- Convair substan- yes phis, 340 tial Tenn. 3/20/68 Evans- Convair substan- yes ville, 440 tial Ind. 2/15/68 Chatta- DC 6 substan- yes nooga, tial Tenn. 4/15/67 Milwau- Convair substan- yes kee, 440 tial Wis. 9/19/67 Banning, DC 8 none yes Ca. 6/24/67 Newark, Convair substan- yes N.J. 850 tial 3/7/67 Mem- Lock- none yes phis, heed 362 Tenn. 3/30/67 Kenner, DC 8 de- yes La. stroyed 2/27/66 New DC 8 substan- yes Or- tial leans, La. 3/4/66 Chicago, DC 9 none yes Ill. 3/3/66 Birming- DC 6 substan- yes ham, tial Ala. 11/24/64 Baton C 46 substan- yes Rouge, tial La. 3/26/64 Tampa, Convair minor yes Fla. 880 11/1/63 Atlanta, Convair substan- yes Ga. 440 tial 8/13/63 Indiana- DC 6 substan- yes polis, tial Ind. 1/14/63 Tampa, DC 8 substan- yes Fla. tial 1/13/63 Mem- DC 7 substan- yes phis, tial Tenn. Total deaths- 129 Total Injuries-3,680 Information from the National Transportation Board, Wash- ington, D.C., 20594-Briefs of Accidents-Delta Air-lines-All Operations-1962 to 1976 (1976 incomplete) From October 13 to the date of the issuance of the complaint, Respondent Union has distributed a third handbill at the two Delta locations. It reads as follows: It takes more than money to fly Delta. It takes nerve. 1013 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Let's look at the accident record. Date Location Plane Damage Death/Injuries 2/27/76 Atlanta, DC 8 none yes Ga. 3/3/76 Spring- Boeing none yes field, 727 Mo. 2/22/76 Tampa, Boeing none yes Fla. 727 9/22/75 Texico DC 8 none yes Vortac, Tex. 8/8/75 Wil- DC 8 none yes mington, Del. 11/25/74 Flush- Boeing substan- yes ing, 727 tial N.Y. 11/16/74 Detroit, DC 8 none yes Mich. 7/3/74 Atlanta, Lock- minor yes Ga. heed 1011 7/27/74 Fort DC 8 none yes Myers, Fla. 2/21/74 Pontiac, DC 9 none yes Ill. 2/15/74 Alexan- DC 9 none yes dria, La. 12/21/73 Leba- DC 9 none yes non, N.H. 11/27/73 Chatta- DC 9 de- yes nooga, stroyed Tenn. 8/20/73 Belle DC 8 none yes Glade, Fla. 7/31/73 Boston, DC 9 de- yes Mass. stroyed 4/1/73 New DC 9 none yes York- Atlan- ta 2/28/73 Las DC 8 none yes Vegas, Nev. 9/28/73 Chicago, DC 9 substan- yes Ill. tial 7/22/72 Knox- Convair none yes ville, 880 Tenn. 9/30/72 Norfolk, Boeing minor yes Va. 727 2/26/72 Alma, DC 8 none yes Ga. 12/20/72 Chicago, Convair substan- yes Ill. 880 tial 3/28/72 Little Convair none yes Rock, 880 Ark. 3/19/72 Atlanta, DC 9 substan- yes Ga. tial 5/30/72 Ft. DC 9 de- yes Worth, stroyed Tex. 8/18/71 Savan- DC 9 substan- yes nah, tial Ga. 8/5/71 Spartan- Convair none yes burg, 880 S.C. Date Location Plane Damage Death/Injuries 10/9/71 Chicago, DC 9 minor yes Ill. 9/17/69 Dallas, DC 8 substan- yes Tex. tial 8/2/69 Atlanta, DC 8 none yes Ga. 5/8/69 Chicago, DC 8 substan- yes Ill. tial 9/4/69 Jackson, Convair none yes Miss. 880 6/10/69 Macon, Convair substan- yes Ga. 440 tial 7/22/69 Ever- DC 8 none yes green, Ala. 1/31/69 Jackson- DC 8 substan- yes ville, tial Fla. 3/16/69 Pulaski, DC 8 none yes Va. 6/30/68 Mem- Convair substan- yes phis, 340 tial Tenn. 3/20/68 Evans- Convair substan- yes ville, 440 tial Ind. 2/15/68 Chatta- DC 6 substan- yes nooga, tial Tenn. 4/15/67 Milwau- Convair substan- yes kee, 440 tial Wis. 9/19/67 Banning, DC 8 none yes Ca. 6/24/67 Newark, Convair substan- yes N.J. 850 tial 3/7/67 Mem- Lock- none yes phis, heed 362 Tenn. 3/30/67 Kenner, DC 8 de- yes La. stroyed 2/27/66 New DC 8 substan- yes Or- tial leans, La. 3/4/66 Chicago, DC 9 none yes Ill. 3/3/66 Birming- DC 6 substan- yes ham, tial Ala. 11/24/64 Baton C 46 substan- yes Rouge, tial La. 3/26/64 Tampa, Convair minor yes Fla. 880 11/1/63 Atlanta, Convair substan- yes Ga. 440 tial 8/13/63 Indiana- DC 6 substan- yes polis, tial Ind. 1/14/63 Tampa, DC 8 substan- yes Fla. tial 1/13/63 Mem- DC 7 substan- yes _his, tial Tenn. Total deaths-129 Total Injuries-3,680 Information from the National Transportation Board, Wash- ington, D.C., 20594-Briefs of Accidents-Delta Air-lines-All Operations-1962 to 1976 (1976 incomplete) Consumer Complaints 1014 HOSPITAL AND SERVICE EMPLOYEES, LOCAL. 399 Month and Year Letters per month July 1976 August 1976 September 1976 October 1976 March 1977 April 1977 May 1977 June 1977 July 1977 TOTAL COMPLAINTS 35 22 19 30 44 31 30 30 24 265 Com- plaints per month 37 27 22 30 54 39 35 38 25 307 The foregoing handbill was also published in the two union publications described above in October 1977 and in the October and December editions, respectively. On January 3, 1978, and thereafter, Respondent dis- tributed a fourth handbill at the two Delta facilities, one side of which reads as follows: As members of the public and in order to protect the wages and conditions of Local 399 members and to pub- licize our primary dispute with the Statewide Building Maintenance Company, we wish to call to the attention of the consuming public certain information about Delta Airlines from the official records of the Civil Aeronau- tics Board of the United States Government. Let's look at the accident record. Date Location Plane 5/27/76 Atlanta, Ga. 3/3/76 Spring- field, Mo. 2/22/76 Tampa, Fla. 9/22/75 Texico Vortac, Tex. 8/8/75 Wil- mington, Del. 11/25/74 Flush- ing, N.Y. 11/6/74 Detroit, Mich. 7/3/74 Atlanta, Ga. 7/27/74 Fort Myers, Fla. 2/21/74 Pontiac, Ill. 2/15/74 Alexan- dria, La. 12/21/73 Leba- non, N.H. 11/27/73 Chatta- nooga, Tenn. 8/20/73 Belle Glade, Fla. DC 8 Boeing 727 Boeing 727 DC 8 DC 8 Boeing 727 DC 8 Lock- heed 1011 DC 8 DC 9 DC 9 Damage Death/Injuries none yes none yes none yes none yes none yes substan- tial none minor yes yes yes none yes none yes none yes DC 9 none yes DC 9 de- stroyed DC 8 none yes yes Date Location 7/31/73 Boston, Mass. 4/1/73 New York- Atlan- ta 2/28/73 Las Vegas, Nev. 9/28/73 Chicago, Ill. 7/22/72 Knox- ville, Tenn. 9/30/72 Norfolk, Va. 2/26/72 Alma, Ga. 12/20/72 Chicago, Ill. 3/28/72 Little Rock, Ark. 3/19/72 Atlanta, Ga. 5/30/72 Ft. Worth, Tex. 8/18/71 Savan- nah, Ga. 8/5/71 Spartan- burg, S.C. 10/9/71 Chicago, Ill. 9/17/69 Dallas, Tex. 8/2/69 Atlanta, Ga. 5/8/69 Chicago, Ill. 9/4/69 Jackson, Miss. 6/10/69 Macon, Ga. 7/22/69 Ever- green, Ala. 1/31/69 Jackson- ville, Fla. 3/16/69 Pulaski, Va. 6/30/68 Mem- phis, Tenn. 3/20/68 Evans- ville, Ind. 2/15/68 Chatta- nooga, Tenn. 4/15/67 Milwau- kee, Wis. 9/19/67 Banning, Ca. 6/24/67 Newark, N.J. 3/7/67 Mem- phis, Tenn. 3/30/67 Kenner., La. Plane DC 9 DC 9 DC 8 DC 9 Convair 880 Boeing 727 DC 8 Convair 880 Convair 880 DC 9 DC 9 Damage Death/Injuries de- yes stroyed none yes none yes substan- yes tial none yes minor yes none yes substan- yes tial none yes substan- tial de- stroyed DC 9 substan- tial Convair 880 DC 9 DC 8 DC 8 DC 8 Convair 880 Convair 440 DC 8 none minor substan- tial none substan- tial none substan- tial none DC 8 substan- tial DC 8 none Convair substan- 340 tial Convair substan- 440 tial DC 6 substan- tial Convair substan- 440 tial DC 8 none Convair substan- 850 tial Lock- none heed 362 DC 8 de- stroyed yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes 1015 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Date Location 2/27/66 New Or- leans, La. 3/4/66 Chicago, Ill. 3/3/66 Birming- ham, Ala. 11/24/64 Baton Rouge, La. 3/26/64 Tampa, Fla. 11/1/63 Atlanta, Ga. 8/13/63 Indiana- polis, Ind. 1/14/63 Tampa, Fla. 1/13/63 Mem- phis, Tenn. Plane Damage DC 8 substan- tial DC 9 none DC 6 substan- tial C 46 substan- tial Convair minor 880 Convair substan- 440 tial DC 6 substan- tial DC 8 DC 7 substan- tial substan- tial Death/Injuries yes yes yes yes yes yes yes yes yes Total deaths- 129 Total Injuries-3,680 Information from the National Transportation Board, Wash- ington, D.C., 20594-Briefs of Accidents-Delta Air-lines-All Operations--1962 to 1976 (1976 incomplete) Consumer Complaints Letters per month July 1976 August 1976 September 1976 October 1976 March 1977 April 1977 May 1977 June 1977 July 1977 TOTAL COMPLAINTS 35 22 19 30 44 31 30 30 24 265 Com- plaints per month 37 27 22 30 54 39 35 38 25 307 There is also reference in the handbill to other anti- Delta statements. It may be noted that this handbilling of Delta has occurred from Monday through Friday of the workweek, approximately between the hours of 8:30 a.m. to 4:30 p.m. On July 7, 1978, the Board granted a motion approv- ing the stipulation, waiving a hearing before an adminis- trative law judge and ordered the matter transferred to itself. However, on March 13, 1979, over 8 months later, the Board reversed itself and remanded the matter to the Regional Director for a hearing on all issues. Thereafter, Delta, on March 22, 1979, filed a motion received on March 26, urging the Board to reconsider its foregoing action pointing out inter alia that the remand order failed to state any reason for taking such action, sua sponte. On June 8, 1979, in an order signed by the Associate Execu- tive Secretary of the Board, the Board denied the motion for reconsideration on the basis that it contained nothing not previously considered by the Board. I At the hearing before me on July 11, 1979, the parties all agreed to an addendum to the stipulation of facts de- scribed above, which in essence added little to the fore- going. No oral evidence was proffered by the parties on this occasion. The issue thus is, as indicated by the General Counsel, whether the handbilling to the extent indicated is violative of the second proviso to Section 8(b)(4) of the Act in that it in effect is untruthful. All parties agreed before me that there is no factual conflict herein. As will appear, a decision must be made as to whether we are talking about truthfulness in a technical or an- other sense. C. Conclusions Perhaps, as a starting point it is in order to point out that the Supreme Court has held that leafleting on pri- vate shopping center property, which did not relate to any purpose contemplated by the center, was not pro- tected by the first amendment. Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972). The General Counsel has so urged here, citing International Brotherhood of Electrical Workers [Giorgi Construction Co.] v. N.L.R.B., 341 U.S. 694 (1961), and American Federation of Television and Radio Artists, etc. (Great Western Broadcasting Corporation d/b/a KXTV), 150 NLRB 467, 472 (1964). In a different context, the Board has recently pointed out in United Steel Workers of America, AFL-C1O-CLC (Pet Incorporated), 244 NLRB 96 (1979), that various em- ployees may not be strangers to each other in terms of Section 8(b)(4). It there noted, however, that a consumer boycott falls outside the protection of the publicity pro- viso if it is untruthful. 2 This leaves for treatment the present issue. In Pet, the Board relied on International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Milk Drivers and Dairy Employees. Local 537 (Jack M. Lohman, d/b/a Lohman Sales Company), 132 NLRB 901 (1961). The Board there agreed with me that a handbiller is not an insurer that the content of a hand- bill is 100 percent correct, and that these handbills "truthfully" advised the public of the issue. I deem the situation here to be otherwise. For example, in Local 732 (Servair Maintenance), 229 NLRB 392 (1977), the Board ambiguously lumped picketing and handbilling together and found the publicity unlawful. The Board has held that essential elements of the Jef- ferson Standard in cases involving the advocacy of a boy- cott of an employer's product are that (1) the boycott must be tied to a coexisting labor dispute, and (2) must not consititute public discouragement of an employer's i In a footnote, Member Murphy stated that she would "grant the motion to the extent of informing the parties that the stipulation does not include all necessary information as to all issues submitted to the Board, including but not limited to issues raised by the charging part) in its bnef which are outside the stipulation." There is no indication in the order whether this was issued by a panel or by Ihe full Board 2 I note that in Per the parties stipulated, unlike the instant case, that the advertisements and handbills were neither "nisleading nor untruth- ful " Month and Year 1016 HOSPITAL AND SERVICE EMPLOYEES, LOCAL 399 products. The Firestone Tire and Rubber Co., Inc., 238 NLRB 1323 (1978), and Coor's Container Company, 235 NLRB 1312 (1978). The Jefferson Standard concept is manifestly based on the rationale that statements in the publications such as those under consideration herein were so vitriolic or offensive in their content so as to fall afoul of the truthfulness concept. As the Court stated: The handbill diverted attention from the labor con- troversy. It attacked public policies of the company which had no discernible relation to that controver- sy. The only connection between the handbill and the labor controversy was an ultimate and undis- closed purpose or motive on the part of some of the sponsors that, by the hoped for financial pressure, the attack might extract from the company some future concession. A disclosure of that motive might have lost more public support for the em- ployees than it would have gained, for it would have given the handbill more the character of coer- cion than of collective bargaining. [346 U.S. 464, 476-477.] It hardly needs stating that there has been a plethora of major air crashes in recent years and particularly a larger number of fatalities involved due to the larger size of the aircraft.3 I cannot, therefore, view this as technical truthful pub- licity. The mode of the publicity was deliberately chosen 3 This is not to minimize the crash of a plane with a single passenger. by Respondent and the reasonable highly coercive effect thereof perforce intended. 4 And as for placing this publicity in union magazines or publications this is a forum that Respondent chose to de- liberately utilize and the same results necessarily follow. I find, therefore, that Respondent in essence has en- gaged in conduct violative of Section 8(b)(4)(ii)(B) of the Act by distributing the handbills as quoted above and printing them in the above-named publications, and that this conduct was not protected by the second proviso of Section 8(b)(4) of the Act. CONCL USIONS OF LAW 1. Statewide Maintenance Corporation and Delta Air Lines, Inc., are persons engaged in commerce or in an industry affecting commerce within the meaning Section 2(1), (6), and (7), and Section 8(b)(4) of the Act. 2. Hospital and Service Employees Union, Service Employees International Union, AFL-CIO. Local 399, is a labor organization within the meaning of Section 2(5) of the Act. 3. By handbilling the terminal and ticket offices of Delta with handbills misleadingly unrelated to any dis- pute with Delta, and therefore technically untruthful with an object of forcing Delta to cease doing business with Statewide, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 4 The press has recently been full of stories of cancellations of Ira'el on nights after the recent Chicago catastrophe. 1017 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD THE REMEDY Having found that Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(4)(ii)(B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. [Recommended Order omitted from publication.] 1018