Hospital And Service Employees Union, Service Employees International Union, Afl-Cio, Local 399

602 DECISIONS OF THE 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 March 31, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 10, 1982, the National Labor Re- lations Board issued a Decision and Order in this proceeding 1 The Board found that handbilling and publication of handbills by the Respondent Union, urging a total consumer boycott of neutral employ- er Delta Air Lines, Inc (Delta), in furtherance of the Respondent's primary dispute with Statewide, violated Section 8(b)(4)(u)(B) of the Act and was unprotected by the publicity proviso In reaching this decision, the Board did not analyze whether the Respondent's conduct was "coercive" within the meaning of Section 8(b)(4), as the Respondent apparently conceded this point Nor did the Board determine whether the Respondent's conduct was protected by the first amendment to the Constitu tion Rather, having concluded that the Respond- ent's conduct was coercive, engaged in for a sec- ondary object, and not protected by the publicity proviso, the Board presumed that its finding of a violation accorded "with the Constitution and Con- gress' intent to outlaw secondary boycotts " (Fn omitted) 263 NLRB 996, 999 (1982) By order dated October 2, 1984, the United States Court of Appeals for the Ninth Circuit2 set aside the Board s Decision and Order and remand- ed the case for further proceedings Although the court agreed with the Board that the Respondent's handbilling was not protected by the publicity pro- viso, it said it could not adjudicate the Respond ent's claim of constitutional protection until the Board considered the statutory "coercion" issue The court remanded the case to the Board to ad- dress the issue of "what constitutes coercion in the context of the handbilling in this case," without ig- noring the constitutional concerns 743 F 2d at 1429 On November 29, 1984, the Board advised the parties that they may file statements of position re- garding the issues under consideration Thereafter, the General Counsel, Delta, and the Respondent filed statements of position 3 i 263 NLRB 996 2 Hospital & Service Employees Local 399 v NLRB 743 F 2d 1417 (9th Cir 1984) 'The Respondent additionally filed a request for oral argument That request is denied as the stipulated record and briefs adequately present The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel On April 20, 1988, the Supreme Court issued its decision in Edward J DeBartolo Corp v Florida Gulf Coast Building Trades Councll,4 holding that Section 8(b)(4)(ii)(B) of the Act does not proscribe peaceful handbilling and other nonpicketing public- ity urging a total consumer boycott of neutral em- ployers That decision is controlling here and re quires that we dismiss the complaint The parties stipulated to the facts in this case From July 1, 1975, to December 16, 1976, Delta subcontracted with National Cleaning Company (National) for janitorial services at Delta's Los An geles International Airport (LAX) administrative offices National had a collective bargaining agree- ment with the Respondent On December 16, 1976, Delta lawfully terminated its subcontract with Na- tional and contracted with nonunion Statewide for the same janitorial services As a result of this can- cellation and new contract, five National employ- ees were laid off and a sixth was transferred The parties stipulated that the Respondent had a pri mary labor dispute with Statewide and no primary dispute with Delta On September 23, 1977, and on various dates thereafter, in furtherance of its primary dispute with Statewide, the Respondent distributed four different handbills at Delta's LAX facility and in front of Delta's downtown Los Angeles' offices 5 These handbills urged the public to boycott Delta The handbilling was peaceful and did not cause interruptions in deliveries to Delta or refusals to work by employees of Delta or any other person the issues and positions of the parties The Chamber of Commerce of the United States of America was permitted to file an amicus curiae brief 4 485 U S 568 (1988) 6 The full text of the handbills is set forth in the underlying Board de cision at 996 Briefly handbill A states Please do not fly Delta Air lines Delta Airlines Unfair Does not provide AFL-CIO conditions of employment The reverse side of the handbill provides inter alia that It takes more than money to fly Delta It takes nerve It additionally sets forth National Transportation Board (NTB) and Civil Aeronautics Board (CAB) data relating to Deltas accident and consumer complaint record Handbill B mirrors the reverse side of handbill A except that it omits the CAB consumer complaint statistics Handbill C has the identical reverse side as handbill A Its front urges the public to boycott Delta for causing the layoff of the Respondents members and for subcontracting with a maintenance company which does not provide union wages and benefits Handbill D is the same as handbill C except that it identifies the maintenance company with which the Re spondent has a dispute as Statewide In the absence of evidence that the information itself was false or mis leading the Board presumed that the CAB and NTB handbill data was factually accurate However the Board found that the use of the infor mation tended to be misleading as to the nature of the primary dispute See 263 NLRB 997 In 7 and 998 In affirming the Boards conclusion that the handbills were not protected by the publicity proviso the court of appeals found it unnecessary to decide this latter issue 743 F 2d at 1425 fn 5 293 NLRB No 67 SERVICE EMPLOYEES LOCAL 399 (DELTA AIR LINES) In conjunction with its handbilling, the Respond- ent also published two of its handbills in union newspapers, and placed a block advertisement in a union newspaper stating, "Do Not Fly Delta " Applying DeBartolo to these facts, we find that the Respondent did not engage in proscribed con- duct under Section 8(b)(4) 7 The Respondent an nounced its boycott against Delta through hand- Handbills A and C See also Steelworkers (Pet Inc) 288 NLRB 1190 (1988) 603 bills and newspaper advertisements There was no violence, picketing, patrolling, or work stoppage The Respondent merely attempted to persuade cus- tomers not to patronize Delta DeBartolo made clear that such appeals are not coercive Accordingly, we find that the Respondent's con- sumer boycott did not violate Section 8(b)(4) We therefore shall dismiss the complaint ORDER The complaint is dismissed