Hospital & Service Employees Union, Local 399, Services Employees Intern. Union, AFL-CIO v. N.L.R.B.

• Decision Date: 02 October 1984
• Docket Number: P,83-7145,AFL-CI,Nos. 83-7060,s. 83-7060
• Citation: 743 F.2d 1417
• Parties: 117 L.R.R.M. (BNA) 2717, 53 USLW 2215, 102 Lab.Cas. P 11,215 HOSPITAL & SERVICE EMPLOYEES UNION, LOCAL 399, SERVICE EMPLOYEES INTERNATIONAL UNION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Delta Air Lines, Inc., Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1417

743 F.2d 1417

117 L.R.R.M. (BNA) 2717, 53 USLW 2215,

102 Lab.Cas. P 11,215

HOSPITAL & SERVICE EMPLOYEES UNION, LOCAL 399, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Delta Air Lines, Inc., Intervenor.

Nos. 83-7060, 83-7145.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 4, 1984.

Resubmitted March 1, 1984.

Decided Oct. 2, 1984.

Jeffrey Paule, Geffner & Satzman, Los Angeles, Cal., for petitioner.

Elinor Hadley Stillman, NLRB, Washington, D.C., for respondent.

Leslie P. Klemperer, Atlanta, Ga., for Delta Airlines, Inc.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before CHOY, FARRIS, and NORRIS, Circuit Judges.

CHOY, Circuit Judge:

Petitioner Hospital and Service Employees Union Local 399, Service Employees International Union, AFL-CIO ("Union") appeals from a National Labor Relations Board ("NLRB") order requiring it to cease and desist from distributing certain handbills and publishing certain advertisements. In this appeal we consider the issue of whether the NLRB properly applied a twenty-five-year-old statutory provision in the National Labor Relations Act ("the Act") to a set of facts no court has yet addressed. We set aside the order of the Board and remand for further proceedings consistent with this opinion.

I.

A.

All parties stipulated to the relevant facts. From July 1, 1975 to December 16, 1976, intervenor Delta Air Lines, Inc. ("Delta") subcontracted the janitorial work for its administrative offices at the Los Angeles International Airport to National Cleaning Company ("National"). National signed a collective bargaining agreement with the Union.

On December 16, 1976, Delta lawfully terminated its subcontract with National and made a new contract with Statewide Maintenance Company ("Statewide"), a nonunion employer. As a result, National released five of the six Union employees, who had cleaned the Delta offices, and transferred the remaining employee to another job. Since the date of Delta's cancellation of its subcontract with National, the Union has had a primary labor dispute with Statewide, not Delta.

On September 22, 1977, in furtherance of its primary dispute with Statewide, the Union began distributing handbills at Delta's Los Angeles International Airport facility and in front of Delta's downtown Los Angeles office. At the airport facility, one, and sometimes two, individuals distributed handbills in front of Delta's ticket area near its curb-side check-in stand. One individual distributed handbills on the sidewalk in front of Delta's downtown office. The handbilling did not cause any interruptions in deliveries to Delta or any refusals by Delta employees to perform work-related activities.

The Union distributed four different handbills, which the Board referred to as handbills "A", "B", "C", and "D". Handbill "A", distributed from September 23 to October 3, 1977, consisted of two sides. One side read, "Please do not fly Delta Airlines. Delta Airlines unfair. Does not provide AFL-CIO conditions of employment. Hospital & Service Employees Union, Local 399, AFL-CIO."

The second side stated, "It takes more than money to fly Delta. It takes nerve. Let's look at the accident record." It then listed 55 accidents involving Delta that had occurred during the period of January 13, 1963, to May 27, 1976, their locations, the type of aircraft involved, the degree of damage, and whether there had been injuries or deaths. This side of handbill "A" also provided the total number of deaths and injuries in these accidents and stated that the information was obtained from the National Transportation Board ("NTB"), Washington, D.C. Finally, it listed the numbers of the letters and complaints that Delta received monthly from July 1976 to July 1977, and stated that this information was obtained from the Civil Aeronautics Board ("CAB"), Washington, D.C.

Handbill "B", distributed from October 6 to October 12, 1977, contained all of the information set forth on side two of handbill "A". It did not list, however, the information pertaining to the letters and complaints received by Delta.

Handbill "C", distributed from October 13 to December 28, 1977, consisted of two sides. The first side read as follows:

Please Do Not Fly Delta Airlines. This airline has caused members of Service Employees Union, Local 399, AFL-CIO, at Los Angeles International Airport, to become unemployed. In their place they have contracted with a maintenance company which does not provide Local 399 wages, benefits and standards. We urge all union members to protest Delta's action to the Delta office in your region. If you are concerned about the plight of fellow union members ... Please Do Not Fly Delta Airlines.

The other side of handbill "C" listed the identical accident and consumer complaint information as that contained on side two of handbill "A".

The Union distributed handbill "D" from January 3 to March 1, 1978, when the United States District Court for the Central District of California temporarily enjoined its distribution. This handbill was similar to handbill "C", except that on side one it identified the "maintenance company" as Statewide, and on side two, before listing Delta's accident and consumer complaint records, it included the following prefatory statement:

As members of the public and in order to protect the wages and conditions of Local 399 members and to publicize 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 Aeronautics Board of the United States Government.

Simultaneous with the handbilling, the Union published copies of handbills "A" and "C" in two Union newspapers, the Service Union Reporter and the Service Union Reporter, Political Action Report. The Union also published in these two newspapers a block advertisement that stated, "Do Not Fly Delta."

B.

Congress added the provisions of the Act at issue here in 1959 as part of the Labor-Management Reporting and Disclosure Act, commonly known as the Landrum-Griffin amendments. Pub.L. No. 86-257, Sec. 704(a), 73 Stat. 519, 542-43 (1959). This amendment attempted to plug loopholes in the secondary boycott provisions of the earlier Taft-Hartley Act. The relevant part of the amended section 8(b)(4) makes it an unfair labor practice for a labor organization to:

threaten, coerce, or restrain any person engaged in commerce or in any industry affecting commerce, where in either case an object thereof is--

(B) forcing or requiring any person ... to cease doing business with any other person ....

29 U.S.C. Sec. 158(b)(4)(ii)(B).

Possible first amendment problems with this provision concerned some members of Congress. See 105 Cong.Rec. 16,591 (1959) (remarks of Sen. Kennedy); id. at 15,540-41 (remarks of Rep. Thompson); id. at 6231-32 (remarks of Sen. Humphrey). See generally NLRB v. Fruit & Vegetable Packers (Tree Fruits), 377 U.S. 58, 69-70, 84 S.Ct. 1063, 1069-1070, 12 L.Ed.2d 129 (1964). Congress, therefore, also enacted in 1959 a proviso to this section, known as the "publicity proviso," which exempts from its prohibitions:

publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.

29 U.S.C. Sec. 158(b)(4).

C.

After Delta first filed an unfair labor practice charge and the NLRB General Counsel issued a complaint against the Union, all parties moved that the case be transferred to the NLRB. Attached to the motion was a stipulation of facts. On July 7, 1978, the NLRB granted the motion. Almost eleven months later, on March 13, 1979, the Board issued an order remanding the case to the Regional Director "for further proceedings, including a hearing on all issues."

An administrative law judge held a hearing on July 10, 1979. The factual evidence submitted principally consisted of the original stipulation of facts and a short addendum to it. On December 11, 1979, the administrative law judge found that the Union had violated section 8(b)(4)(ii)(B) of the Act. Thereafter, the Union and the General Counsel filed exceptions and supporting briefs, and Delta filed cross-exceptions and a supporting brief.

A majority of the NLRB ¹ held that the Union's handbilling and advertisements violated section 8(b)(4)(ii)(B) of the Act because its conduct was "designed to bring economic pressure on Delta for the purpose of forcing Delta to cease doing business with Statewide, the primary." 263 N.L.R.B. 996, 997 (1982). The NLRB also concluded that the handbills and advertisements did not comply with the requirements of the publicity proviso.

As to handbills "A" and "B", the Board noted that neither handbill mentioned Statewide, the primary. The NLRB reasoned, "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 ...." Id.

Although the Board recognized that handbills "C" and "D" identified the nature of the primary dispute, it noted that "they also include the NTB and CAB information which pertains only to Delta, the secondary employer, and is totally unrelated to Delta's connection with [the Union's] primary labor dispute." Id. The Board then found that the publicity proviso does not protect...