Warshawsky & Co. v. National Labor Relations Board

182 F.3d 948, 337 U.S. App. D.C. 149, 161 L.R.R.M. (BNA) 2772, 1999 U.S. App. LEXIS 15135

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 9, 1999
• Docket: 98-1277
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting Opinion filed by Circuit Judge WALD.

SILBERMAN, Circuit Judge:

Warshawsky & Company petitions for review of an order of the National Labor Relations Board dismissing a secondary boycott complaint filed against Ironwork-ers Local 386. We grant the petition.

I.

Warshawsky (the Company) sells automobile parts and accessories and is currently constructing a warehouse and mail order facility in LaSalle, Illinois. The Company retained G.A. Johnson & Sons, Inc. as its general contractor for the project. Johnson in turn subcontracted with various other companies, all of whom maintained collective bargaining contracts with the building trade unions that represent their employees. Throughout the period relevant to this case, Johnson and the subcontractors worked at the LaSalle site from approximately 7 a.m. to 3:30 p.m. every weekday, and occasionally on Saturday. In March of 1997, Warshawsky retained Automotion, Inc. to install rack and conveyor systems at the site. In response, Iron Workers Local 386, which represents Automotion’s employees and had no dispute with Johnson or any of the subcontractors, engaged in “area standards” picketing of Automotion at the construction site on March 5. The union stopped later that day after being told that Automotion was not yet working at the site. One week later, Warshawsky’s Vice President of Human Resources sent the union’s business agent a letter stating that a “reserve gate” had been established at the site for Auto-motion, and that any subsequent picketing of Automotion should be conducted only when Automotion was working on the site: Monday through Friday from 4 p.m. to 6 a.m., and all day Sunday. Automotion began work at the site according to this schedule on the same day.

The next morning, at around 6:40 a.m., various union agents stationed themselves in close proximity to the LaSalle site on a road that was used primarily by persons going to and from the site. The sitq itself was not open to members of the general public. As employees of Johnson and its subcontractors approached the construction site in their automobiles, the union agents distributed the following handbill:¹

AUTOMOTION, INC. IS DESTROYING THE STANDARD OF WAGES FOR HARD-WORKING UNION MEMBERS

AUTOMOTION, INC. PAYS SUBSTANDARD WAGES AND FRINGE BENEFITS.

IGNORING THE AREA STANDARDS THREATENS THE EFFORTS AND SACRIFICES OF ALL UNION MEMBERS.

Iron Workers Local 386 is currently engaged in a labor dispute concerning the failure of Automotion, Inc. to pay ihe area standard wages and fringe benefits. We are appealing only to the general public. We are not seeking any person to cease work or to stop making deliveries.

The union agents also spoke briefly with the employees to whom they gave the handbill, although we have no direct evidence of what was said.

This activity lasted for about four hours, and resulted in the employees of Johnson and its subcontractors refusing to enter the site and refusing to perform services for their employers. The union agents engaged in the same conduct at the same times on four of the next six days, resulting each day in employees of Johnson and its subcontractors refusing to work. None of that conduct occurred while Automotion, or any of its employees, suppliers, or subcontractors, were working at the site.

The General Counsel, responding to an unfair labor practice charge filed by War-shawsky, issued a complaint alleging that the union’s conduct violated § 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act.² The union’s answer admitted that its agents handbilled and spoke to employees of Johnson and its subcontractors, but characterized that conduct as a “lawful informational picket.” The parties subsequently stipulated to the facts as set forth above and agreed that those facts would serve as the complete record of the case to be submitted to the ALJ for his decision without a hearing. The ALJ granted the union’s motion to amend its answer two days before briefs were to be filed, which Warshawsky but not the General Counsel opposed, to substitute the word “handbill-ing” for “picket.”³

The ALJ determined that because there was no direct testimony as to what was said by the union agents to the neutral employees and nothing else in the record supported an inference that the union “induced” or “encouraged” the work stoppage, the General Counsel had not met his burden of proof. The ALJ’s decision appears to have been strongly influenced by his conclusion that the handbilling engaged in by the union — as opposed to picketing— was “pure expressive” activity and is therefore entitled to some measure of First Amendment protection. Although he described the handbill as strident in tone, according to him it did no more than truthfully advise members of the “public” (■ie., the neutral employees of Johnson and its subcontractors) of Automotion’s wages and benefits. He accordingly discounted the suspicious timing of the handbilling— that it took place when Automotion’s employees were not present. And he also concluded that the apparent connection between the handbilling and the work stoppage was insufficient as a matter of law to prove inducement.

The Board affirmed the ALJ’s findings and conclusions and adopted the order dismissing the complaint. See Iron Workers Local 386 (Warshawsky & Co.), 325 N.L.R.B. No. 141, 1998 WL 251581 (May 14, 1998). Chairman Gould concurred separately. He thought that the case was a close one; the evidence arguably could support an inference that the union “was indeed making an appeal, through a careful wink and a nod, for the employees to engage in a work stoppage.” He noted particularly the timing of the handbilling when the only recipients would be neutral employees, the text of the handbill, and the resulting work stoppage. But based on Board precedent limiting the “nod, wink, and a smile” theory, see Building & Constr. Trades Council of Tampa (Tampa Sand & Material Co.), 132 N.L.R.B. 1564, 1565-66, 1961 WL 15896 (1961), he concluded that the facts of the instant case, involving a handbill with a disclaimer, together with an absence of evidence as to the content of the conversations between the union and the employees, did not satisfy the General Counsel’s burden of proving unlawful inducement or encouragement.

II.

As noted, the ALJ (whose opinion the Board adopted) relied significantly on the First Amendment in concluding that the union did not induce or encourage the employees of the neutral employers to engage in a secondary strike. In the ALJ’s words, the looming constitutional issue meant that “analysis must proceed with care.” The ALJ’s reasoning is not all that clear to us; it is as if the First Amendment acts as a deus ex machina directing his factfinding.⁴ He presumably thought that to prohibit a union from engaging in “area standards” handbilling of neutral employees might violate the union’s First Amendment rights, and therefore the constitutional avoidance canon suggests that the words “induce or encourage” in § 8(b)(4)(i) should be interpreted, and applied, narrowly so as not to proscribe the handbilling involved in this case. We think the First Amendment is not at all implicated and once it is put aside, the Board’s finding can be judged in accordance with the standard substantial evidence test.

The Supreme Court has emphatically said that “[t]he prohibition of inducement or encouragement of secondary pressure by § 8(b)(4)[i] carries no unconstitutional abridgment of free speech,” International Brotherhood of Elec. Workers, Local 501 v. NLRB, 341 U.S. 694, 705, 71 S.Ct. 954, 95 L.Ed. 1299 .(1951). And in Electrical Workers, the Court also recognized that “[t]he words induce or encourage are broad enough to include in them every form of influence and persuasion.” Id. at 701-02, 71 S.Ct. 954 (emphasis added). It follows that the First Amendment does not protect communications directed at — and only at — the neutral employees merely because the form of communications is hand-billing and conversations.⁵ Indeed, the Board’s brief concedes that a violation of the Act would have been established “if the handbilling had [exphcitly] requested neutral employees to cease work, or if the record showed that the union had orally induced or encouraged such a work stoppage .... ”

The Board (both the ALJ and the Board’s brief) relies heavily on the Supreme Court’s decision in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988), in which the Court did pivot on the First Amendment — using the canon of constitutional avoidance — to construe the secondary boycott provisions of the Act not to reach peaceful handbilling directed to consumers at a shopping mall. There the union’s primary dispute was with a construction company retained to build a department store in the mall. See id. at 570, 108 S.Ct. 1392. The handbill asked customers not to shop at any stores in the mall until the mall owner (DeBartolo) promised that all of its tenants would use only contractors who pay fair wages, and made clear that the union was seeking only a consumer boycott. The Board found that the handbilling “coerced” the mall tenants, in the words of § 8(b)(4)(ii)(B), by putting economic pressure on them through the appeal to consumers. The Supreme Court rejected the Board’s interpretation of § 8(b)(4)(ii)(B) to reach such consumer directed handbilling in part to avoid the serious constitutional question that would arise.

We think DeBartolo, and the constitutional issue the Board’s statutory interpretation would have presented there, is fundamentally different because, as the Supreme Court observed, the mall’s potential customers were being urged “to follow a wholly legal course of action, namely, not to patronize the retailers doing business in the mall.” Id. at 575, 108 S.Ct. 1392 (emphasis added). The issue in the case was whether that sort of appeal to the consumers — which obviously implicates the First Amendment — could be thought to threaten, coerce, or restrain the mall tenants to cease doing business with another (DeBartolo) within the meaning of § 8(b)(4)(ii)(B). By contrast, the conduct sought by a union that directly induces or encourages a secondary strike is itself unlawful under § 8(b)(4)(i). See 29 U.S.C. § 158(b)(4)© (providing that it is an unfair labor practice for a labor organization or its agents “to engage in ... a strike ... [the object of which is] forcing or requiring any person ... to cease doing business with any other person”). The obvious implication of DeBaHolo, consistent with the Court’s prior precedent, is that an appeal limited to employees of a neutral employer which reasonably could be found to be an inducement to engage in a secondary strike is quite another matter; it does not raise any Constitutional problems.

The ALJ, again drawing on DeBartolo, suggested a related basis for his decision. DeBartolo involved the construction of the so-called publicity proviso of 8(b)(4), which states that nothing in § 8(b)(4)

shall be construed to prohibit 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. § 158(b)(4) (1994). The Board in DeBartolo had argued the proviso was an exception to the secondary boycott provisions, and therefore if a union was engaging in public handbilling, but handbilling that did not qualify under the proviso because it was not calling attention to a “distributor” of goods with whom a union has a labor dispute, it was implicitly banned (as coercive). The Court rejected that construction — in part, as we noted, for constitutional reasons — pointing out that the proviso was not an exception to a broad handbilling ban, but rather a clarification as to the meaning of the section’s bar on coercion. See DeBartolo, 485 U.S. at 582, 108 S.Ct. 1392.

The ALJ, keying on the Supreme Court’s description of the proviso as serving a clarification function, pointed to the language “public, including consumers and members of a labor organization,” 29 U.S.C. § 158(b)(4) (emphasis added), and reasoned that handbilling appeals to union members are entitled to the same constitutional protection as those directed to consumers. They are, after all, as Congress recognized, both parts of the public. Therefore the constitutional grounds for construing the handbilling restriction narrowly as it relates to consumer handbilling apply equally to handbilling directed at union members.⁶ We think that reasoning is flawed. It ignores the Supreme Court’s eases which draw a distinction between urging consumers to engage in a lawful boycott and inducing union members to engage in an unlawful secondary strike.

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We come then to the Board’s finding that the union did not “induce” the neutral employees to stop work. Petitioner argues that the Board’s finding is not supported by substantial evidence, which is another way of saying that no reasonable factfinder could have made such a finding. See Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 118 S.Ct. 818, 822, 139 L.Ed.2d 797 (1998). This is not a credibility case; there was no testimony. Nor did the Board employ any presumptions, so we need not consider whether such would have been reasonable. See id. 118 S.Ct. at 828. The case turns only on the reasonableness of the inferences the Board did, and did not draw, from the raw stipulated facts. And “[w]hen the Board purports to be engaged in simple factfinding, unconstrained by substantive presumptions or evidentiary rules of exclusion, it is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Id. at 829.

We think that the evidence does “fairly demand” the inference that the union sought to induce the neutral employees to walk off the job site. The handbills themselves, the time, place, and manner of their distribution, the simultaneous conversations between the union agents and the neutral employees, and the subsequent response of those employees all combine to paint only one plausible picture. The ALJ unreasonably took each piece of evidence, analyzed it separately — not even accurately in our view — and concluded that no one piece sufficed, never asking whether the totality of facts pointed in only one direction.

To start with the handbill, the union argued that it specifically stated that “we are appealing only to the general public. We are not seeking any person to cease work or to stop making deliveries.” But that caveat is contained in only very small print at the bottom of the handbill. The Board has not in the past credited similar disclaimers in the face of circumstances suggesting that the disclaimer is merely a legal cover. See National Ass’n of Broad. Employees, Local 31 v. CBS Inc., 237 N.L.R.B. 1370, 1376, 1978 WL 7966 (1978) (concluding that purported disclaimer at bottom of handbill was a “self-serving disavowal” given the manner in which the handbill was distributed), enforced, 631 F.2d 944 (D.C.Cir.1980); see also Catalytic, Inc. v. Monmouth & Ocean County Building Trades Council, 829 F.2d 430, 432, 435 (3d Cir.1987) (dismissing disclaimer on handbill virtually identical to disclaimer at issue here as a “carefully vague and legalistic statement” whose tone may actually have sent a signal to the neutral employees to cease work); cf. International Brotherhood of Elec. Workers, Local 453 v. Southern Sun Elec. Corp., 252 N.L.R.B. 719, 723, 1980 WL 12469 (1980) (stating that union’s self-serving disclaimer of picketing for recognitional purposes is not determinative of whether union was engaged in lawful picket).

As the ALJ put it, the main language of the handbill contained a strident attack on Automotion’s substandard wages and, most significantly, the lugubrious prediction that “Ignoring the Area Standards Threatens the Efforts And Sacrifices Of All Union Members” (emphasis added), which clearly tells the recipients of the handbill that they should regard this matter as one in which they as union members have a stake. And being so informed there is only one possible action they can take that will contribute to the cause.

Indeed, Congress itself indicated that this sort of handbill would be at least evidence of inducement, if not necessarily conclusive evidence. The publicity proviso assumes that handbills, or like publicity, advising members of a labor organization that a secondary employer is distributing products produced by an employer with whom the union has a primary dispute can have the “effect of inducing” a secondary employee not to perform services. 29 U.S.C. § 158(b)(4) (emphasis added). That the proviso does not afford a defense in this case⁷ has no bearing on whether this generic type of handbilling is at least evidence of inducement.

Second, the handbilling was de facto directed only at the neutral employees. It took place on an access road to the construction site (the common situs) only at times when the employees of Johnson and its subcontractors — the neutral employees — were reporting for work and during which, as the union knew, Automotion was not working. The ALJ himself determined at one point in his opinion that “the stipulated facts leave scant room for any conclusion that the handbills had been intended for anyone other than persons reporting for work at the LaSalle project” and that “[t]here is no basis in the stipulation that would allow even an inference that handbills had been actually distributed to anyone else.” WARSHAWSKY, 325 N.L.R.B. No. 141, at 6 (emphasis added). Inexplicably, the ALJ later drew precisely that forbidden inference, remarking that nothing in the evidence ruled out the possibility that the union handbilled non-employees who may have tried to enter the construction site (a mystery food vendor or some construction-site tourists?). See id. at 9. Based on the ALJ’s own initial finding, which seems unassailable, we do not see how his latter inference can possibly be justified.

Then there are the conversations between the union agents and the employees. The ALJ was apparently under the impression that because there is no testimony as to the content of those conversations, the fact that they took place is of no moment or significance. But we think that conclusion is, as an evidentiary matter, ridiculous. It may well be that those conversations, standing alone, would be of little relevance — but they did not stand alone. A reasonable factfinder would have evaluated the existence of the conversations in light of the evidence already set forth: a handbill distributed exclusively to the very employees who later ceased work and which calls attention to the efforts and sacrifices of all union members. In such a case, the mere fact of a conversation between the alleged inducers and those allegedly being induced can speak volumes. See, e.g., International Ass’n of Bridge, Structural & Ornamental Iron Workers, Local No. 133 v. NLRB, 598 F.2d 1154, 1159-60 (9th Cir.1979) (enforcing Board’s order finding unlawful inducement in part based on conversations at neutral employer’s office gate between union agent and neutral employees who failed to report for work later that day, even though there was no testimony regarding the content of the conversations). We also think the Board’s and the union’s reliance on precedent holding a union not to have violated the Act based on conversations between a union and neutral employees, see, e.g., Carpenters Local 316 (E & E Dev. Co.), 247 N.L.R.B. 1247, 1248-49, 1980 WL 11157 (1980); Gould, Inc., 238 N.L.R.B. 618, 622, 1978 WL 8073 (1978), enforced, 638 F.2d 159, 163 n. 2 (10th Cir.1980); Tampa Sand, 132 N.L.R.B. at 1565-66, is misplaced. In each of those cases, the Board focused on testimony that the union officials specifically told the neutral employees that each employee’s decision whether or not to walk off the job was his or her own to make. It is precisely the absence of such evidence here — neutralizing, as it were, any inference of inducement — that renders the fact of the conversations so telling.

Moreover, the union agents who talked to the neutral unionized employees are particularly within the control of the union, a fact which in similar circumstances has led the Board to draw an adverse inference against the union for failing to produce evidence about the content of conversations involving union members. See Ironworkers Dist. Council of the Pacific Northwest (Hoffman Constr. Co.), 292 N.L.R.B. 562, 578, 1989 WL 223819 (1989); Carpenters Local 316 (Thornhill Constr.), 283 N.L.R.B. 81, 84, 1987 WL 89514 (1987); Local 3, Int’l Brotherhood of Elec. Workers (Hunts Point Elec. Wiring Serv., Inc.), 271 N.L.R.B. 1580, 1585 & n. 6, 1586, 1984 WL 36770 (1984); see also International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. NLRB, 459 F.2d 1329, 1335-1342 (D.C.Cir.1972). The Board and the union’s protest that the General Counsel had the burden of proof and is therefore to blame for failing to produce this evidence strikes us as flatly inconsistent with this principle. A reasonable factfinder must ask, as do we: What save for inducing or encouraging words could the union agents possibly have said to the recipients of the handbills? “Have a nice day”? “How ’bout them Cubs?”? Any “non-inducement” words would be inconsistent with the setting, and to suppose the union agents uttered them would be sheer speculation. By contrast, the inference that the union orally induced the employees to cease work has, as we have shown, a substantial evidentiary base.

We come last to the actual work stoppage that occurred after the handbilling and conversations. Here again, the ALJ reasoned that, under Board precedent, a work stoppage alone is not sufficient proof of inducement. See, e.g., Gould, 238 N.L.R.B. at 622-23; Teamsters, Local Union No. 688 (Levitz Furniture Co.), 206 N.L.R.B. 1131, 1132-33, 1973 WL 5220 (1973); Tampa Sand, 132 N.L.R.B. at 1568; cf. United Scenic Artists, Local 829 v. NLRB, 762 F.2d 1027, 1033 (D.C.Cir.1985) (union’s intent, and not the effect of its actions, is the critical aspect of finding an unlawful secondary “object”). Chairman Gould made the same point in concluding, despite his misgivings, that the union did not violate the Act. However correct this proposition is, it certainly cannot be taken to mean, as the ALJ implied, that the fact of a work stoppage has no evidentiary value in proving a case of inducement. To the contrary, the Board has found that a union’s handbilling constituted unlawful inducement in part because of its effect in producing a work stoppage, see International Ass’n of Bridge, Sructural & Ornamental Iromvorkers, Local No. 188 (R.F. Erection), 233 N.L.R.B. 283, 287, 1977 WL 9285 (1977), enforcement granted in part and denied in part, 598 F.2d 1154 (9th Cir.1979); see also Catalytic, 829 F.2d at 435 (“The simple cause-and-effect of the appearance of the leafletters and work stoppages eloquently testified to the purpose of the enterprise.”), and has also relied on the absence of a work stoppage as evidence that a union did not engage in unlawful inducement, see, e.g., United Scenic Artists, Local 829 (Theatre Techniques, Inc.), 243 N.L.R.B. 27, 28, 1979 WL 9395 (1979), rev’d on other grounds, 655 F.2d 1267 (D.C.Cir.1981); Levitz Furniture, 205 N.L.R.B. at 1133 (refusing to presume from “one isolated instance when a delivery was not made” that the union’s handbilling was in effect a signal picket).⁸ We think the Board’s approach in these prior cases is consistent with our view of what a reasonable factfinder would have been obliged to do in this case: to consider a work stoppage as probative evidence of inducement, even if not sufficient evidence taken alone.

We suppose it is possible to infer that the neutral employees “spontaneously” walked off the job after receiving the handbills and talking with the union agents. The real question is whether it is a reasonable inference to draw.⁹ We think not. As we observed, the ALJ employed a kind of “divide and conquer” evidentiary strategy, dissecting the General Counsel’s case into evidentiary fragments that standing alone would be insufficient to prove inducement, but neglecting to consider what we think is the overpowering eviden-tiary force of those parts put together. For the Board to focus on evidentiary fragments and to ignore the aggregate weight of the evidence is no more permissible than ignoring evidence that contradicts its conclusion. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

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We have no difficulty, reviewing the whole record, in concluding the Board’s finding is defective; it lacks substantial evidence.

APPENDIX

AUTOMOTION, INC. IS DESTROYING THE STANDARD OF WAGES FOR HARD-WORKING UNION MEMBERS

IGNORING THE AREA STANDARD THREATENS THE EFFORTS AND SACRIFICES OF ALL UNION MEMBERS.

Iron Workers Local 386 is currently engaged in a labor dispute concerning the failure of Automotion, Inc. to pay the area standard wages and fringe benefits. We are appealing only to the general public. We are not seeking any person to cease work or to stop making deliveries.

1 . The actual handbill is in an appendix to our opinion. As will be apparent, the caveat at the bottom is in very small print indeed.

2 . Those sections provide that it is an unfair labor practice for a labor organization or its agents

(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—

(B) forcing or requiring any person to cease using, 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 section 159 of this title ...

29 U.S.C. § 158(b)(4)(i), (ii)(B) (1994) (emphasis added).

3 .Warshawsky argues that the ALJ erred in granting the motion because the last-minute change from "picket” to "handbilling” prejudiced Warshawsky, and that even if the motion were properly granted, the ALJ erroneously failed to consider the original answer as evidence that the union's conduct constituted picketing. Because we conclude that the union’s conduct violated the statute even accepting the amended answer, and without even considering the original answer as evidence of picketing, we need not address these contentions.

4 .Our dissenting colleague is no more forthcoming as to just how the First Amendment affects her analysis. It would appear that she is of the view that circumstantial evidence should be thought less probative than direct evidence in this setting, but she does not explain why. Cf. Crawford-El v. Britton, 93 F.3d 813, 818 (D.C.Cir.1996) (en banc) ("[T]he distinction between direct and circumstantial evidence has no direct correlation with the strength of the plaintiffs case.”), rev'd on other grounds, 523 U.S. 574, 118 S.Ct. 1584, 1595, 140 L.Ed.2d 759 (1998).

5 . The dissent, post at 959, misconstrues this rather unexceptionable statement.

6 . The ALJ thought the same holds true (as in this case) for a union’s handbilling of members of a different labor organization.

7 . The proviso cannot constitute a defense for the union in this case most obviously because there was a work stoppage. The ALJ thought that it did not apply also because the handbills did not advise the public that Warshaw-sky was distributing Automotion's "products” (or perhaps that Warshawsky could not even be thought a "distributor”).

8 . The Board has even suggested (though admittedly in dicta) in distinguishing handbilling from picketing that handbilling is only "lawful” when unaccompanied by a work stoppage. See Local 917, International Brotherhood of Teamsters (Industry City Assocs.), 307 N.L.R.B. 1419, 1419 n. 3, 1992 WL 182378 (1992) (citing Hospital & Serv. Employees Union, Local 399 (Delta Air Lines, Inc.), 293 N.L.R.B. 602, 603, 1989 WL 223951 (1989)).

9 . We, unlike the dissent, do not think it matters that the stipulated facts did not specify whether all or only some of the employees stopped work or the exact length of the conversations with the union agents. Nor, for that matter, did the ALJ.