182 F.3d 948 (D.C. Cir. 1999)
Warshawsky & Company, Petitioner,v.National Labor Relations Board, RespondentIronworkers Local 386,Intervenor
No. 98-1277
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 1999Decided July 9, 1999

On Petition for Review of an Order of the National Labor Relations Board
Michael W. Duffee argued the cause for petitioner.  With  him on the briefs was John N. Raudabaugh.
Steven B. Goldstein, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the
brief were Linda Sher, Associate General Counsel, John D.  Burgoyne, Acting Deputy Associate General Counsel, and  David Habenstreit, Supervisory Attorney.
Terrance B. McGann argued the cause for intervenor.With him on the brief was Travis J. Ketterman.  Collins P.  Whitfield entered an appearance.
Before:  Wald, Silberman, and Henderson, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Dissenting Opinion filed by Circuit Judge Wald.
Silberman, Circuit Judge:


1
Warshawsky & Company petitions for review of an order of the National Labor Relations  Board dismissing a secondary boycott complaint filed against  Ironworkers Local 386.  We grant the petition.

I.

2
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 Auto motion'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.


3
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 site 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


4
AUTOMOTION, INC.IS DESTROYINGTHE STANDARD OFWAGES FORHARD-WORKINGUNION MEMBERS


5
AUTOMOTION, INC.PAYS SUBSTANDARDWAGES AND FRINGE BENEFITS.


6
IGNORING THE AREA STANDARDSTHREATENS THE EFFORTS AND SACRIFICESOF ALL UNION MEMBERS.


7
Iron Workers Local 386 is currently engaged in a labor dispute concerning thefailure 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 personto cease work or to stop making deliveries.


8
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.


9
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.


10
The General Counsel, responding to an unfair labor practice charge filed by Warshawsky, issued a complaint alleging  that the union's conduct violated S 8(b)(4)(i)(B) 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 "handbilling" for "picket."3


11
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 hand billing 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" (i.e., the  neutral employees of Johnson and its subcontractors) of  Auto motion's wages and benefits.  He accordingly discounted  the suspicious timing of the hand billing--that it took place  when Auto motion's employees were not present.  And he also  concluded that the apparent connection between the hand billing and the work stoppage was insufficent as a matter of law  to prove inducement.


12
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  (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 hand billing 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), 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.

13
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" hand billing 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 S 8(b)(4)(i) should be interpreted, and applied,  narrowly so as not to proscribe the hand billing 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.


14
The Supreme Court has emphatically said that "[t]he prohibition of inducement or encouragement of secondary pressure  by S 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 (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 (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 handbilling and conversations.5  Indeed, the Board's brief concedes that a violation of the Act would have been established  "if the handbilling had [explicitly] requested neutral employees to cease work, or if the record showed that the union had  orally induced or encouraged such a work stoppage...."


15
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 (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.  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 S 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  S 8(b)(4)(ii)(B) to reach such consumer directed handbilling in part to avoid the serious constitutional question that would  arise.


16
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  (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 S 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 S 8(b)(4)(i).  See 29 U.S.C. S 158(b)(4)(i)(B) (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  DeBartolo, 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.


17
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 S 8(b)(4)


18
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.


19
29 U.S.C. S 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  hand billing, but hand billing 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 hand billing ban, but rather a clarification as to the  meaning of the section's bar on coercion.  See DeBartolo, 485  U.S. at 582.


20
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. S 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 cases which draw a  distinction between urging consumers to engage in a lawful  boycott and inducing union members to engage in an unlawful  secondary strike.


21
* * * *


22
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 fact finder could have made such a finding.  See Allentown Mack Sales & Serv. v. NLRB, 118 S. Ct. 818, 822 (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.  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 fact finding, 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.


23
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.


24
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, 237  N.L.R.B. 1370, 1376 (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 (Southern Sun Elec. Corp.), 252 N.L.R.B. 719, 723 (1980)  (stating that union's self-serving disclaimer of picketing for  recognitional purposes is not determinative of whether union  was engaged in lawful picket).


25
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.


26
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. S 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  hand billing is at least evidence of inducement.


27
Second, the hand billing 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, Auto motion 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 hand billed 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.


28
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 fact finder  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.  433 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);  Gould, Inc., 238 N.L.R.B. 618, 622 (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.


29
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);  Carpenters Local 316 (Thornhill Constr.), 283  N.L.R.B. 81, 84 (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);  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 fact finder 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.


30
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.), 205 N.L.R.B. 1131, 1132-33 (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 Iron Workers, Local No. 433 (R.F. Erection),  233 N.L.R.B. 283, 287 (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 leaf letters 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), 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 fact finder 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.


31
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  evidentiary 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 (1951).


32
* * * *


33
We have no difficulty, reviewing the whole record, in  concluding the Board's finding is defective;  it lacks substantial evidence.

A P P E N D I X

34
AUTO MOTION, INC. IS DESTROYING THE STANDARD OF WAGES FOR HARD-WORKING UNION MEMBERS


35
AUTO MOTION, INC. PAYS SUBSTANDARD WAGES AND FRINGE BENEFITS.


36
IGNORING THE AREA STANDARD THREATENS THE EFFORTS AND SACRIFICES OF ALL UNION MEMBERS.


37
Iron Workers Local 386 is currently engaged in a labor dispute concerning the failure of Auto motion, 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.



Notes:


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 indus-try affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, trans-port, 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. S 158(b)(4)(i)(B), (ii)(B) (1994) (emphasis added).


3
  Warshawsky argues that the ALJ erred in granting the  motion because the last-minute change from "picket" to "hand billing" 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 plaintiff's case."), rev'd on other grounds, 118 S. Ct. 1584,  1595 (1998).


5
  The dissent, post at 3, misconstrues this rather unexceptionable statement.


6
  The ALJ thought the same holds true (as in this case) for a  union's hand billing 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 Warshawsky was distributing Auto motion'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) (citing Hospital & Serv. Employees Union, Local 399 (Delta Air Lines, Inc.), 293 N.L.R.B. 602, 603  (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.
Wald, Circuit Judge, dissenting:
In my view, the majority  goes too far afield from the record and established restraints  on our appellate review powers in order to overturn the  Board and find that the union committed a violation of section  8(b)(4).  An opinion upholding the decision of the Board in  this case, which I support, on the other hand would have had  only a limited impact;  at most, it would have sent a message  to future companies that they ought not agree to be bound by  too sparse factual records.  Instead, the majority issues a  surprisingly broad-based opinion which reverses the Board,  finds a union in violation of federal labor law,1 and sets forth  new constitutional law restricting the reach and protection of  the First Amendment.
The relevant facts of this case are easily summarized. Warshawsky & Company ("the Company") is engaged in the  warehousing and sale of auto parts and accessories.  In 1997,  the Company decided to build a warehouse and mail order  facility in LaSalle, Illinois.  The Company hired a general  contractor who, in turn, hired various subcontractors, each of  which maintained collective bargaining agreements with various unions representing employees working on the construction site ("construction employees").  These employees  worked at the construction site Monday through Friday, 7  a.m. to 3:30 p.m. and on occasional Saturdays as well.
In March 1997, the Company directly retained Auto motion  Inc. ("Automotion") to install certain rack and conveyor systems at the construction site.  Shortly thereafter, Ironworkers Local 386 ("Union"), which had no labor dispute with  either the general contractor or any of the subcontractors, engaged in area standards picketing against Automotion. The Union discontinued this picketing after being informed  that Automotion was not yet working on the site.  Subsequently, an agent of the Company sent the Union a letter  stating that Automotion employees would be scheduled to  work on the site Monday through Friday from 4 p.m. to 6  a.m. and all day Sunday.  The letter requested that any  future picketing of Automotion be conducted only when Automotion employees were on site.
On March 13, 1997, at around 6:40 a.m., various agents of  the Union were stationed in close proximity to the entrance of  the construction site.  During about a four hour period, the  Union agents distributed copies of a handbill to construction  employees as they approached the construction site.  A copy  of the handbill appears as an appendix to the majority's  opinion.  Union agents distributed the same handbill at the  same location and at approximately the same time on March  14, 17, 18, and 19.  Employees of Automotion were not at the  site on any of these occasions.  Certain construction employees (number unknown, see below) refused to enter the construction site on each of the days on which the Union  hand billed.
On March 13, 1997, the Company filed an unfair labor  practice charge alleging illegal secondary activity on the part  of the Union.  On March 25, 1997, the Regional Director  issued a complaint charging that the Union had violated  section 8(b)(4)(i) and (ii)(B) of the National Labor Relations  Act, which, in relevant part, makes it unlawful for a union to  "induce or encourage" any individual employed by a neutral  employer (i.e., one with whom the union has no primary labor  dispute) to engage in a work stoppage, where the union's  object is to force the neutral to cease doing business with an  employer with whom the union does have a primary dispute.
Before the Administrative Law Judge ("ALJ"), the parties  presented a joint motion accepting a stipulation of facts and  agreeing to waive a hearing.  The stipulation contained a  copy of the handbill distributed by the Union.  The stipulation also provided that "various" agents of the Union were stationed on a road used primarily by individuals going to and  from the construction site.  The stipulation provided that the  Union agents gave copies of the handbill to individuals entering the site and that the agents "briefly spoke" with these  individuals.  Finally, the stipulation provided that "the individuals" on the first day, and then "various individuals" on  subsequent days refused to enter the construction site and  perform work for their respective employers.  Based on the  stipulation of facts, which constituted the entire record, and  on the briefs, the ALJ dismissed the complaint against the  Union, concluding that "a preponderance of the ... evidence  fails to establish that the failure of some of [the construction]  employees to report for work ... had been other than a  spontaneous reaction by those employees to the [Union's]  lawful actions of publicizing, other than through picketing or  through conduct tantamount to picketing, undisputed facts  about Autom[o]tion's wages and benefits."  Iron Workers  Local 386 (Warshawsky & Co.), 325 N.L.R.B. No. 141 (May  14, 1998) at 4-5.  The Board subsequently adopted the opinion of the ALJ, with Chairman Gould writing a concurring  opinion.  The majority opinion today reverses the Board and  insists that it lacked "substantial evidence" for its conclusion  that a violation of section 8(b)(4) had not been proven.  I  dissent from that holding on two basic grounds.
First, in order to reach its result, the majority creates new  constitutional law restricting the scope and protection of the  First Amendment.  In taking the ALJ to task for considering  the First Amendment in his analysis of whether the Union  violated section 8(b)(4), the majority opines that "the First  Amendment does not protect communications directed at-and only at-... neutral employees...."  Majority opinion  ("Maj. op.") at 7.  This novel proposition, I believe, is simply  wrong.
In his opinion, the ALJ correctly noted that in order to  establish a violation of section 8(b)(4)(i)(B) and (ii)(B), the  General Counsel had to prove by a preponderance of the  evidence both that the Union induced or encouraged individuals employed by the Company to engage in a work stoppage  and that the Union had the object thereby of forcing the Company to cease dealing with Automotion.  The ALJ was  guided in his attempt to discern the intent and motive of the  Union by the Supreme Court's decision in Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades  Council, 485 U.S. 568 (1988) (DeBartolo II).
DeBartolo II is a case where the Supreme Court, under the  canon of constitutional avoidance, construed section 8(b)(4) as  not prohibiting the distribution of handbills to consumers  "press[ing] the benefits of unionism to the community and the  dangers of inadequate wages to the economy and the standard of living of the populace."2  Id. at 576.  In so holding,  the Supreme Court emphasized the difference, constitutionally speaking, between pickets and handbills, the former constituting a mixture of conduct and communication and the latter  constituting pure expressive speech:
[P]icketing is a "mixture of conduct and communication"and the conduct element "often provides the most per-suasive deterrent to third persons about to enter abusiness establishment."  Handbills containing the samemessage ... are "much less effective than labor picket-ing" because they "depend entirely on the persuasiveforce of the idea."
Id. at 580 (quoting NLRB v. Retail Store Employees (Safeco),  447 U.S. 607, 619 (1980) (Stevens, J., concurring)).  In reaching its decision in DeBartolo II, the Court defined the socalled "publicity proviso" to section 8(b)(4) as constituting a  clarification of section 8(b)(4).  The publicity proviso provides,  inter alia, that section 8(b)(4) did not 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."  29 U.S.C.  S 158(b)(4) (1994).  The handbills in DeBartolo II did not fall specifically under the publicity proviso;  however, the Supreme Court, in interpreting the proviso as a clarification of,  rather than an exception to, section 8(b)(4), found that other  forms of handbilling (i.e., in addition to those that fall within  the terms of the proviso) would not necessarily be prohibited  under section 8(b)(4).
Like the handbills in DeBartolo II, the handbills in the  instant case were not covered by the publicity proviso.3  And  while the handbills in DeBartolo II were distributed to consumers at a shopping mall, the ALJ nevertheless found the  reasoning of DeBartolo II to be "important to the resolution  of the instant case":
[T]he fact that the [Supreme Court found the publicity] proviso [to be] an express "clarification," rather than an exception, is some indication that Congress contemplated other, unstated, clarifications which would inform resolution of issues arising under Section 8(b)(4) of the Act'sstated prohibitions.  Second, such unstated clarification sarise in the context of the publicity proviso's ... definition of "the public" which embraces both "consumers and members of a labor organization[.]"  Inasmuch as the proviso serves as a clarification, rather than an exception, the reach of the prohibition which it interprets, explains, and clarifies must, of necessity, take into account publicity of disputes which is directed to members of labor organizations, without too readily concluding that such publicity constitutes unlawful inducement or encourage-ment.
Warshawsky & Co., 325 N.L.R.B. No. 141, at 6 (emphasis  added).
Of course, as the ALJ acknowledged, hand billing does not  enjoy unfettered exemption under section 8(b)(4), in that  "[e]specially in the context of common situs situations, labor  organizations must make reasonable efforts to minimize the  impact of their messages on neutral employers and their  employees."  Id. at 7.  However, he continued, this does not  mean that "those labor organizations [in the context of a  common situs] are ... required to abandon altogether communication of their messages."  Id.  Citing again to DeBartolo II, the ALJ noted the following:[T]he Supreme Court recognized the constitutional and statutory protection extended to handbill messages pro-testing failures to satisfy area wage and fringe benefit standards--those which "press[ ] the benefits of union is to the community and the dangers of inadequate wages to the economy and the standard of living of the populace."  [DeBartolo II,] 485 U.S. at 576.  Therefore, when evaluating the lawfulness of [handbill] messages, even when disseminated to members of a labor organization ata common situs, analysis must proceed with care.
Id.  The ALJ's point was that the Supreme Court has  recognized the constitutional and statutory protection of  handbills, like those in the instant case, which press the  benefits of unionism and the dangers of inadequate wages to  the community.  The Supreme Court also defined the publicity proviso as a clarification, an explanation, of section 8(b)(4).The publicity proviso in turn defines the public as including members of labor organizations.  Accordingly, the analysis of  whether a union has violated section 8(b)(4) as a result of  communicating via handbills with members of other labor  organizations must proceed with some care.  In other words,  one ought not too easily assume that a union has an illegal  intent or motive when hand billing neutral employees;  a union  has a First Amendment right, even if not an unfettered right,  to express its ideas to all members of the public.
Surprisingly, the majority seems to be saying that the First  Amendment is not implicated at all when a union communicates solely with neutral employees.  There is no support for  this belief.  The majority jumps from the Supreme Court's  holding that the prohibition under section 8(b)(4) of the  inducement or encouragement of a secondary work stoppage  does not constitute an unconstitutional abridgement of free  speech, see International Bhd. of Elec. Workers v. NLRB,  341 U.S. 694, 705 (1951), to its conclusion that any kind of  union speech directed to neutral employees carries no First  Amendment protection.  This, in my view, puts the cart  before the horse.  It is of course true that if the General  Counsel had actually proven that a union induced and encouraged employees of a neutral employer to engage in a work  stoppage with the object of forcing a neutral employer to  cease dealing with the primary, then that union could not  complain that its First Amendment rights had been violated. But it does not follow from this proposition that no communication to neutral employees is protected speech or, as the  majority implies, that the ALJ erred in interpreting "induce"  or "encourage" narrowly in order to avoid First Amendment  concerns.  See Maj. op. at 6 ("[The ALJ] presumably thought  that ... the constitutional avoidance canon suggests that the  words 'induce or encourage' in S 8(b)(4) should be interpreted, and applied, narrowly so as not to proscribe the hand billing involved in this case.  We think the First Amendment is  not at all implicated....").
The majority places great reliance, in this regard, on its  ability to distinguish the facts of DeBartolo II from those  here.  Again, without any affirmative support that I can find,  the majority thinks it adequate to point out that DeBartolo II involved handbills directed to consumers as opposed to the  handbills here, directed to neutral employees.  It reasons  that when a union handbills consumers and they subsequently  refuse to patronize a neutral employer, these consumers are  following a wholly legal course of action, namely, withholding  their buying power.  In contrast, it argues, when a union  handbills neutral employees, the only course of action open to  these employees is illegal to them under section 8(b)(4);  that  is, neutral employees, when informed through a handbill that  a primary employer pays substandard wages, can only respond sympathetically by engaging in an illegal work stoppage.4  This single-option assumption is, however, mistaken. Members of labor organizations--even employees of neutrals--are people too.  They also consume.  They also may be  potential future joint venturers with or employees of the  offending company.  They certainly are members of their  communities with an interest in knowing which employers in  the area pay substandard wages.  The majority assumes that  any time a union expresses its ideas to neutral employees,  that union has an illegal intent under section 8(b)(4) and the  neutral employees can only "contribute to the cause" by  engaging in an illegal work stoppage under section 8(b)(4), an  assumption without support in this record or in ordinary  experience and without which, the distinction the majority  attempts to draw between DeBartolo II and the instant case  simply dissolves.  In my view, the ALJ was completely  justified in construing section 8(b)(4) narrowly and in assessing the situation with appropriate concern for the First  Amendment rights of union members.
My second ground for dissenting is that I believe the  majority errs in concluding that the stipulated record reasonably compels the conclusion that the Union had an illegal  intent and motive under section 8(b)(4).  It is settled law that  the burden of proof is on the General Counsel to prove each  and every element of a section 8(b)(4) violation, see Local Union No. 501, Int'l Bhd. of Elec. Workers v. NLRB, 756  F.2d 888, 898 n.8 (D.C. Cir. 1985) ("The general counsel and  the charging party bear the burden of proving a secondary  boycott violation ..."), and that courts owe substantial deference to the findings of the Board, see Laro Maintenance  Corp. v. NLRB, 56 F.3d 224, 228 (D.C. Cir. 1995) ("The  court's review of the Board's factual conclusions is highly  deferential ...").5  The majority nevertheless reverses the  Board for failing to draw all inferences from purely circumstantial evidence in favor of the party with the burden of  proof.  This result is quite unprecedented;  it is akin to  reversing a jury verdict in a civil case because the jury, based  on purely circumstantial evidence, declined to find in favor of  the plaintiff.  In reality, this case is quite simple:  the Company (and the General Counsel) made a fatal strategic error in  waiving a hearing before the ALJ and in agreeing to be  bound by a stipulated record that did not sufficiently support  (let alone compel) the conclusion that the Union violated  section 8(b)(4).
To begin with, the majority unfairly wrests more (negative)  substance from the stipulation of facts than is actually there. In truth, the stipulation is quite spare.  The stipulation  contains a copy of the handbill given to the construction employees.  The handbill mentions nothing about the neutral  employer (i.e., does not say that the Company had engaged in  any wrongdoing by hiring Automotion) and, instead, contains  a specific proviso stating that the Union was engaged in a  labor dispute with Auto motion (again, not the neutral employer) and that the Union was "not seeking any person to cease  work or to stop making deliveries."  Second, the stipulation  states that "various" agents of the Union "were stationed at  certain locations along Murphy Road ... a road used primarily by individuals going to and from the La Salle facility  construction project."  From this stipulation, we know only  that Union agents (number unknown) were stationed along a  road used primarily (but not exclusively) by individuals entering the construction project.  The stipulation also states that  the agents gave copies of the handbill to the individuals  entering the construction project and "briefly spoke with"  these individuals.  From this, we know only that the agents  spoke with the employees, but we have no evidence whatsoever of the content of the conversations, nor do we know how  long these conversations were;  "briefly" could mean five  seconds, merely enough time to say, "We are members of the  Iron Workers Local 386, please read this handbill," or five  minutes, enough time to request that the employees not  engage in a work stoppage, to request that the employees  engage in a work stoppage, or, indeed, to talk about the Cubs. Finally, the stipulation states only that "the individuals" (on  the first day) and then "various individuals" (on the subsequent days) refused to enter the construction project and  perform work for their respective employers.  We know from  this only that more than one employee refused to work, but  we do not know whether the number amounted to 10 out of  50;  50 out of 100;  or 200 out of 200.  The exact number and  ratio of employees who refused to work would certainly shed  a great deal of light on what one ought infer from the other  facts of the case, but, alas, we have no access to that  information on this record.
The majority speaks about the need to draw "reasonable"  inferences, see Maj. op. at 10, but then proceeds to draw  every possible inference against the Union.  For example, with respect to the handbill itself, the majority finds that the  legal disclaimer on the handbill is of no evidentiary moment  because "that caveat is contained in only very small print at  the bottom of the handbill."  Maj. op. at 10.  In contrast, the  ALJ found the disclaimer to constitute some "evidence that  '[the Union] effectively took steps to neutralize [any] implied  inducement or encouragement of employees' of other employers."  Warshawsky & Co., 325 N.L.R.B. No. 141, at 9 (quoting Service & Maintenance Employees Union No. 399 (The  William J. Burns Int'l Detective Agency) 136 N.L.R.B. 431,  437 (1962)).  The ALJ's inference with respect to the disclaimer is, at the very least, reasonable.  The disclaimer is  perfectly readable and although all boilerplate language is  somewhat legalistic, that does not mean that it is without any  effect.6
The majority also infers that because the Union hand billed  only neutral employees, it must have had an illegal intent  thereby.  But the ALJ's inference from this same fact is  equally compelling, or, again, at least reasonable.  The Company chose to segregate Automotion employees from the  construction employees;  by scheduling Automotion employees at odd hours, the Company made it impossible for the  Union to communicate its message to both Automotion and  construction employees at the same time.  The ALJ found  that because the Automotion employees were presumably  already aware that their wages were below area standards,  nothing was to be gained by the Union in reinforcing this  knowledge.  On the other hand, the construction employees  were less likely to have been aware that Automotion's wages  were below area standards.  The ALJ determined that the  Union had a legitimate (non-illegal) interest in informing the  construction employees of Automotion's substandard wages  and that it was not required to republish this fact to Automotion employees simply to avoid the appearance of an improper  motive under section 8(b)(4).
The majority's final inference of intent to induce is drawn  from the fact that a conversation between Union agents and  employees took place and that some kind of a work stoppage  ensued.  But what the majority infers from that sequence  paints too bleak a picture for the Union.  The majority  conveniently ducks the question of how many of the neutral  employees, in response to the handbill and the words spoken  by Union agents, turned around and went home on the days  that the Union handbilled.  See Maj. op. at 3-4.  If in fact we  knew that all, virtually all, or even a substantial number of  the employees spoken to refused to work each day, then,  perhaps, the majority's inference that the work stoppage was  due to the Union's words might be justified.  However, we do  not know from the record how many employees in fact turned around and went home.  More specifically, we do not even  know the ratio of employees who went home to employees  who stayed and went to work.  The stipulation tells us  nothing and the ALJ only found that a preponderance of the  evidence failed to "establish that the failure of some of those  employees to report for work ... had been other than a  spontaneous reaction by those employees to the [Union's]  lawful actions...."  Warshawsky & Co., 325 N.L.R.B. No.  141, at 4-5 (emphasis added).  The majority has to assume  something totally absent from the record, namely, that all,  virtually all, or at least a substantial number of the employees, refused to work, in order to infer from that that "any  'non-inducement' words would be inconsistent with the setting, and to suppose the union agents uttered them would be  sheer speculation."7  Maj. op. at 13.  Absent this first assumption that the conversations and handbills affected more  employees than not, to guess at the contents of these brief  car-side conversations is sheer speculation.  It is not unfathomable, for example, that the Union agents merely reconveyed orally the gist of the handbill they were distributing. Clearly, had a hearing been held, testimony as to the content  of the conversations could have been elicited.  Without such testimony, it is the General Counsel's burden to prove the  Union's speech fell on the inducement side, not the Union's  burden to prove it did not.8
In the end, the majority's decision requires an acceptance  of the proposition that the evidence here, entirely circumstantial, is so overwhelming against the Union that it brooks of  only one conclusion, a conclusion that is at odds with the  judgment of both the ALJ and the unanimous Board and one  which must be reached in the face of accepted legal principles  that the General Counsel bears the burden of proof and that  courts owe substantial deference to the Board's findings. Ultimately, Chairman Gould's concurrence said it right:
[T]he Respondent's conduct here, although arguably consistent with an attempt to induce a work stoppage, ultimately lacks a sufficient basis to support such a finding [of a section 8(b)(4) violation].  The "nod, wink, and a smile" theory cannot prevail in these circumstances where the handbill explicitly stated that the Respondent was not seeking a work stoppage, and where the record fails to show what the Respondent said to the employees as they approached the job site and received the hand-bills.  In the final analysis, a finding of a violation must be based on something more than the mere fact that the employees ceased work in response to the Respondent's conduct.
Warshawsky & Co., 325 N.L.R.B. No. 141, at 2.
I respectfully dissent.
Notes:


1
 In so finding, the majority does not take seriously enough the  proposition that unions, as well as individuals, are innocent until  proven guilty, and that courts must therefore be cautious in concluding that a union has violated federal labor law.  See NLRB v.  Ironworkers Local 433, 850 F.2d 551, 555 (9th Cir. 1988) ("What is  at issue is a finding that [the union] violated federal law.  This is a  serious conclusion, one we do not lightly reach.").


2
 The handbills in DeBartolo II were distributed to patrons of a  mall in order to protest the alleged substandard wages paid by a  company hired by the mall owner to construct a department store  there.


3
 The handbilling in this case did not fall under the publicity  proviso because, on its face, the proviso deals only with handbilling  that does not result in a work stoppage.  Additionally, the ALJ  found that the handbilling here did not fall under the publicity  proviso because the handbills did not advise the public that the  Company was distributing Automotion's products.  The full text of  the proviso is, as follows:
[Nothing in section 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. S 158(b)(4) (1994).


4
 Indeed, the majority says, being "informed [of the message on  the handbill] there is only one possible action [neutral employees]  can take that will contribute to the cause."  Maj. op. at 11.


5
 The deference owed to the Board's findings is even greater  where, as here, the critical question involves the intent and motive  of the Union.  As we have repeatedly warned:
The court's review of the Board's determination with respect to motive is even more deferential [than the court's review of Board findings more generally].  Motive is a question of fact that may be inferred from direct or circumstantial evidence. In most cases only circumstantial evidence of motive is likely to be available.  Drawing such inferences from the evidence to assess an employer's [or union's] ... motive invokes the expertise of the Board, and consequently, the court gives "substantial deference to inferences the Board has drawn from the facts," including inferences of impermissible motive. Laro Maintenance Corp., 56 F.3d at 229 (quoting Gold Coast  Restaurant Corp. v. NLRB, 995 F.2d 257, 263 (D.C. Cir. 1993))  (citations omitted).


6
 The cases which the majority cites for discounting the existence  of the disclaimer are clearly distinguishable.  In National Ass'n of  Broad. Employees, Local 31, 237 N.L.R.B. 1370 (1978), the Board  simply found that the existence of a legal disclaimer on a handbill  did not override the otherwise clear indication that the handbilling  involved there was an integral part and extension of picketing being  conducted simultaneously by the same union.  Catalytic, Inc. v.  Monmouth & Ocean County Building Trades Council, 829 F.2d 430  (3d Cir. 1987), is not even a Board case;  it is a review of a district  court injunction against a labor union.  Moreover, counsel for the  union in that case admitted at oral argument that the union  handbilling constituted a "signal."  Finally, the court of appeals'  finding that the disclaimer on the flyer constituted a "signal" was  preceded immediately by the statement that the union's argument  against the findings of the district court "ignore[d] the wide latitude  open to triers of fact to make factual determinations on the basis of  rational inferences which arise from the nature, location, and effect  of picketing."  Id. at 436 (quoting American Radio Ass'n, AFLCIO v. Mobile Steamship Ass'n, Inc., 419 U.S. 215, 232 (1974)).  Of  course, the trier of fact in the instant case made the opposite factual  determination, that the disclaimer constituted credible evidence  against an illegal intent under section 8(b)(4).  Finally, in International Bhd. of Elec. Workers, Local 453 (Southern Sun Elec. Corp.),  252 N.L.R.B. 719 (1980),the Board simply noted that a self-serving  disclaimer that picketing was for a recognitional purpose was not determinative of the union's object in picketing. This unremarkable  proposition does not mean that legal disclaimers have no evidentiary weight at all, it simply means that the mere existence of such a  disclaimer does not necessarily win the day for the union.


7
 The majority cites again to Catalytic for the proposition that the  "simple cause-and-effect of the appearance of leaf letters and work  stoppages eloquently testified to the purpose of the enterprise."829 F.2d at 435.  Again, Catalytic is not a Board case.  It is a case  where the court affirmed the findings of the district court, after  trial, that a union had violated section 8(b)(4) and that an injunction  was proper.  The court in Catalytic rejected the union's arguments  against the findings of the district court because they "ignore[d] the  wide latitude open to triers of fact to make factual determinations  on the basis of rational inferences which arise from the nature,  location, and effect of picketing."  Id. at 436 (quoting American  Radio Ass'n, AFL-CIO v. Mobile Steamship Ass'n, Inc., 419 U.S.  215, 232 (1974)).  In any event, it is decidedly not the law that the  effect of a work stoppage requires the conclusion of a section 8(b)(4)  violation.  To be sure, a work stoppage may constitute evidence of  inducement, and the ALJ never said otherwise, but a work stoppage  alone is not sufficient proof thereof.  See Teamsters, Local Union  No. 688 (Levitz Furniture Co.), 205 N.L.R.B. 1131 (1973).


8
 The majority attempts to shift this burden to the Union by  citing a string of cases, see Maj. op. at 13, which stand for the  proposition that when a party who has relevant information in her  control fails to produce that evidence, that failure may give rise to  an inference that the evidence is unfavorable to her, see, e.g.,  International Union, United Automobile, Aerospace & Agric. Implement Workers of Am. v. NLRB, 459 F.2d 1329, 1335-42 (D.C.  Cir. 1972).  It is true that had a hearing been held, and the Union  had refused to call its agents to testify (or its agents refused to  testify) as to the contents of the conversations, then the ALJ might  have been justified in drawing an inference that the missing testimony would have been damaging to the Union.  Here, however,  there was no hearing and no such phantom testimony.  The Union  did not fail to provide evidence in its control;  it merely agreed,  jointly with the Company, to a stipulation of facts.  There is  absolutely no justification for drawing an inference against the  Union merely because it agreed to a joint stipulation of facts.


