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

National Labor Relations Board - Board Decisions

Mar 31, 1989

293 N.L.R.B. 602 (N.L.R.B. 1989)

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