ENTERPRISE ASS'N OF STEAM, ETC. v. N.L.R.B

[21] BAZELON, Chief Judge (concurring):

I concur in Part III of the Court's opinion, in the bulk of its reasoning and in its judgment that the Board's "right to control" test is inconsistent with National Woodwork Manufacturing Association v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). My path to this conclusion makes it unnecessary for me to consider certain issues raised by the Board in its argument and considered in the Court's opinion.

See Brief for the NLRB at 8-10. This question pertains to the effect of a subsidiary holding in Denver Bldg. Construc. Trades Council v. NLRB, 341 U.S. 675, 689-90, 71 S.Ct. 943, 95 L.Ed. 1284 (1951) on the situation sub judice.

I.

The central dilemma presented by § 8(b)(4) is well known and needs no extended recital. The section purports to prohibit any inducement to force an employer "to cease doing business with any other person." However, the objectives of every strike or job action "include a desire to influence others from withholding from the employer their services or trade." The union by striking always wants to completely shut down the employer and cause the economic injury pursuant to that shut down. Similarly, the union is surely aware and must intend that those who are cut off from the employer's services by the strike will also be injured and that injury might well create a climate in which the union's demands will be met. For example, in a strike of the trucking industry, the hardest hit will be not the trucking industry but the producers of perishable commodities. The union surely intends that and surely expects that injury to help its cause. The strike weapon is not a mere contrivance of the courts nor is it permitted through legislative inaction. The strike weapon is explicitly preserved by Sections 7 and 13 of the NLRA. More than this, that weapon forms the base for the system of private ordering the NLRA promotes. To forbid the use of this weapon or permit a reduction of its effectiveness without explicit legislative approval would radically shift the balance of advantage struck by Congress between union economic power and employer economic power. Courts were and are naturally hesitant to alter that balance and thus, with the Labor Board, sought to accommodate the right to strike with the prohibition on secondary boycotts.

National Labor Relations Act § 8(b)(4)(ii)(B), 29 U.S.C. § 158(b)(4)(ii)(B) (1970).

Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 673, 81 S.Ct. 1285, 1289, 6 L.Ed.2d 592 (1961) (Frankfurter, J.). For this reason the oft-cited language in S.Rep. No. 105, 80th Cong., 1st Sess. 22 (1947) is hopelessly conclusory.

See, National Woodwork Manuf. Ass'n v. NLRB, 386 U.S. 612, 640-43, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967); NLRB v. Erie Resistor Corp., 373 U.S. 221, 234-35, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963); NLRB v. Insurance Agents' Int'l Union, 361 U.S. 477, 490, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); N. Chamberlain J. Kuhn, Collective Bargaining 391 (2d ed. 1965). Cf. American Radio Ass'n v. Mobile Steamship Ass'n, 419 U.S. 215, 95 S.Ct. 409, 424, 42 L.Ed.2d 399 (1974) (Stewart, J., dissenting), quoting Local 20, Teamsters v. Morton, 377 U.S. 252, 260, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964).

The accommodation between Sections 7 and 13 and Section 8(b)(4) which the Board urges upon us focuses on the union's "secondary intent." If a union has an "intent" to achieve the secondary effects occasioned by its strike otherwise protected by Sections 7 and 13, then it follows that the union has engaged in a § 8(b)(4) "secondary boycott." If the union does not intend to achieve those effects but rather seeks only to achieve effects on the primary employer, then the strike is "primary" and not violative of § 8(b)(4). In the Board's words: "While not prohibiting `the incidental effects of traditional primary activity,' Congress by Section 8(b)(4)(B) has `barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer when in fact the activity directed against him was carried on for its effect elsewhere.' . . . If a `tactical object' of the union's conduct is a person other than the employer of the boycotting employees, the `boycott [is] secondary in its aim.'"

Brief for the NLRB, at 7 citing National Woodwork Manuf. Ass'n v. NLRB, 386 U.S. 612, 632, 645, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). See Lesnick, Job Security and Secondary Boycotts, 113 U.Pa.L.Rev. 1000, 1015-18 (1965) for a leading academic formulation of the "union intent" test.

A moment's reflection will suggest the difficulty with this formulation. The union surely intends the secondary effects of all strikes. That secondary effect is part, indeed, in some cases the only operative part of the strike weapon. This observation, rejoins the Board, citing dicta in Denver Building and Trades, proves it is correct here in finding Local 638's activity was secondary, since "an object" (the precise statutory phrase of § 8(b)(4) of Local 638's job action was to put pressure on the general contractor through a strike of its own employer, the "secondary", to force it to terminate business with the general. The obvious response is that this reasoning taken literally would outlaw all strikes, exactly what the "union intent" accommodation seemingly was designed to prevent. A union always intends that employers other than the immediate employer will be pressured by its strikes or job actions.

Denver Bldg. Construc. Trades Council v. NLRB, 341 U.S. 675, 688, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). Of course, the Court is quite correct in noting on pages ___-___ of 172 U.S.App.D.C., on pages 898-899 of 521 F.2d that the Board has cavalierly lifted this dictum from its context. The literal import of the dictum is thus of absolutely no aid in resolving the issues presented in this case.

The Board attempts to limit the far reaching effect of its reasoning by applying it only when the primary employer has no "right to control" assignment of disputed work in work preservation controversies. The Board argues that in this limited situation it can reasonably presume that the union's economic pressure on the primary employer is intended to particularly affect the employer who does have the right to control assignment of the disputed work. The union's object must then be to pressure the employer who does have this right to control to satisfy the union's objective. This formulation essentially limits the Board's reasoning to the construction industry. The Board asks us to accept this reasoning as based upon its expertise in ascertaining union objectives and evaluating union conduct.

The Board seems unaware of this fact and of the serious problems such an approach raises in terms of the over-all equity of the NLRA. It is largely for this reason that I would, if I were writing on a clean slate, adopt the views of Judge Fahy stated in Denver Bldg. Construc. Trades Council v. NLRB, 87 U.S.App.D.C. 293, 186 F.2d 326, 335-37 (1950), rev'd, 341 U.S. 675, 689-90, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). Judge Fahy's opinion would accommodate the peculiar structure of the construction industry to the intendment of § 8(b)(4). See also note 20 infra.

But can the Board's reasoning be limited to situations in which the struck employer has no right to control the disputed work? Assume the immediate employer does have the right to control assignment of the work. A strike to force him to exercise that discretion, i.e. change his purchasing policies, to assign the work to his employees has exactly the same effect as a strike to force him to stop doing business with an individual who, in the situation in which the immediate employer has no right to control, would have the discretion to assign the work to the disputing employees. We have consistently held that a strike to force a termination of business is no different from a strike to force a change in purchasing policies; the language of the statute and common sense clearly support that view.

See, e.g., Local 5, Plumbers Pipefitters v. NLRB, 116 U.S.App.D.C. 100, 321 F.2d 366, 369 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1964).

See National Labor Relations Act § 8(b)(4)(ii)(B), 29 U.S.C. § 158(b)(4)(ii)(B) (1970): ". . . forcing or requiring any person to cease . . . handling . . . the products of any other . . . manufacturer . . . ."
For this reason the statement in H.R. Rep. No. 245, 80th Cong., 1st Sess. 23 (1947), cited by the Brief for the NLRB at 9-10 n. 5 and relied upon in Local 419, Carpet Layers v. NLRB, 151 U.S.App.D.C. 338, 467 F.2d 392, 397 (1972), is not helpful in resolving the issues of this case. That statement is that Congress meant to protect employers who are "powerless to comply with demands giving rise to [secondary] activity. . . ." However, even if we were to assume that Hudik-Ross is a secondary, it certainly can comply with the union's demand by terminating business with Austin, just as a right to control employer can comply by altering his purchasing policies.

If the secondary effects of a strike of or job action against a primary employer are equal when the employer has right to control and when he does not have right to control, why is it that the union does not "intend" the secondary effects in the first situation but does in the second? Surely, the Board will not be heard to argue that since the primary employer can legally "satisfy" the union's demand in the first situation, the presumption as to "intent" is not applicable. The employer who has no right to control can also legally satisfy the union's demand by terminating the offending contract or paying off the union for its lost wages. Similarly, as the general contractor in the non-right to control situation can satisfy the union's demands by changing his own purchasing policies, so the manufacturer in the right to control situation can satisfy the union demands by constructing heating and cooling units such that threading and fitting is done on the job or by going out of business.

To this argument, I take it, the Board's only possible response is that its experience with union actions in the construction industry convince it that (a.) the union is unconcerned with any secondary effect on a manufacturer, when the union's employer can assign it the work in dispute, but (b.) is specially and vitally concerned with the secondary effect on an employer who could assign the disputed work to the union. But surely the Board does not argue that the union does not intend that the manufacturer feel no effects of economic pressure on a right to control employer; nor by its own admission in this case does it argue that the union is specifically seeking to bargain with an employer who does have the right to control when the union's immediate employer does not. It is difficult to perceive how the Board's gradation of union intent can serve as any kind of a rational or definitive standard to distinguish a § 8(b)(4) violation: in both cases the union "intends" the secondary effect and surely makes use of that effect to gain its objective. It may be in other industries that the secondary effects of a strike are less important to a union than in, for example, the trucking industry. Does that make strikes in the trucking industry "secondary" and strikes in other industries "primary"? In any event, the Board has presented us with no record that unions in the construction industry are particularly inclined to manipulate the secondary effects of their primary strikes more in a non-right to control situation than in a right to control situation. Such a conclusion is not intuitively obvious to me: my own suspicion is that the unions intend to force everybody, everywhere to recognize their right to traditional jobs and if a strike of their primary employer pinches some other entity which is ignoring the union's "right" then so much the better from the union's point of view. Thus, I am unwilling to rely on the Board's conclusory allegations of expertise when the illogical of its position is not overcome by a record supportive of that position. In these circumstances, I cannot conclude that the Board has successfully demonstrated that there is any distinction between the union's intent in situations in which the immediate employer has the right to control and the situation in which that employer does not.

My conclusion in this regard is buttressed by another consideration. Clearly, a union strike over failure to agree to an increase in wages or failure to comply with such an agreement does not become secondary activity simply because the employer's ability to pay is practically dependent on the price he himself receives from a third party. Yet only the third party has the "right to control" resolution of the dispute and thus, under the Board's reasoning, the immediate employer is a "secondary." The Board seeks to avoid this intuitively absurd result by stating that the inability to satisfy union demands must be "legal" not "practical" in order to support the right to control test. But what principles support this distinction? One searches in vain. Indeed, the distinction between "practical" and "legal" power, never the most obvious of distinctions in the non-legal world, is attenuated to the point of disappearance when, as here, the "legal" inability of the immediate employer is caused by his own "practical" estimations as to the profit in entering a subcontract in derogation of his work preservation agreement. If the union decides, as an employer might well importune it to decide, to agree to a monetary settlement in lieu of compliance with the work preservation agreement, the immediate employer may find it necessary to seek aid from the general contractor in order to get the job moving. Can the Board really distinguish between "practical" and "legal" control over a labor dispute?

See Local 1694, ILA (Bd. of Harbor Comm'rs), 137 N.L.R.B. 1178, 1182-83 (1962), aff'd, 331 F.2d 712 (3d Cir. 1965). Cf. Local 438, Plumbers Pipefitters (George Koch Sons), 201 N.L.R.B. 59, 62 (1973), aff'd, 490 F.2d 323 (4th Cir. 1973).

If the Board's presumption of secondary intent when the employer has no right to control is extended to situations in which the employer does have the right to control — as, in logic, it must be extended, as discussed above — the right to control presumption becomes not an accommodation between § 8(b)(4) and §§ 7 and 13 but rather an administrative repeal of the right to strike. The Chamber of Commerce in its amicus brief quite unabashedly presses upon us that contention; job site strikes over work preservation issues should be outlawed because of their disruptive effect. While I must commend the Chamber for its honesty of presentation, its argument was over-ruled in the most explicit terms in National Woodwork and upon reflection is really no more than the old, discredited contention bandied about in the days prior to the Norris-LaGuardia Act. Accepting the Chamber's position would re-introduce the labor injunction through the fragile vehicle of § 8(b)(4) and § 10( l). It is simply incomprehensible that Congress would intend such a result without altering Norris-LaGuardia or Sections 7 and 13; in any event, I for one would not bring back the doctrine of Coronado (II) and Bedford Cut Stone without the most explicit Congressional statement that such was demanded by dictates of sound economic policy. Finally, the Board's right to control test must be rejected because the Supreme Court in National Woodwork expressly held that the union could use economic pressure for work preservation against an immediate employer who does have the right to control. As discussed above, there is no distinction between economic pressure against an immediate employer who does have the right to control and one who does not that is relevant to the purposes of § 8(b)(4). Therefore, National Woodwork requires us to reverse the Board's action as arbitrary and as inconsistent with the Act.

The Board is apparently waffling on the question of whether the union may strike the general contractor who in circumstances as those sub judice has the right to control. It first held that the union did have that right but the 9th Circuit rejected that holding on appeal. See Western Monolithics Concrete Prod., Inc. v. NLRB, 446 F.2d 522 (9th Cir. 1971). This Board position apparently motivated the refusal to issue a complaint in Connell Construc. Co. v. Local 100, Plumbers Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975), rev'g, 483 F.2d 1154, 1158 (5th Cir. 1973) and was implicitly rejected by the Supreme Court's holding. The Board's apparent position seems manifestly inconsistent with the Act, see 172 U.S.App.D.C. pp. ___-___, 521 F.2d pp. 892-893 infra, and, as the Court notes in note 29, would seem to expand rather than contract the scope of labor disputes in contravention of the stated goal of § 8(b)(4). Thus, we are forced to the conclusion that when the immediate employer has no right to control, the union is deprived of the right to strike. This cannot be squared with Sections 7 and 13.
The Board offers solace to the union by stating that the union may enforce its contractual agreement with its immediate employer in a § 301 suit. See Local 438, Plumbers Pipefitters (George Koch Sons), 201 N.L.R.B. 59, 63 (1973), aff'd, 490 F.2d 323 (4th Cir. 1973). Thus, the Board implies that the scope of § 8(b)(4) is broader than that of § 8(e). The Court in note 38 correctly notes that both the majority and dissent in National Woodwork held that § 8(b)(4) and 8(e) were to be construed in pari passu. Furthermore, the Board's position raises the intriguing question of whether the union may strike to require the immediate employer to pay damages for violating the concededly valid work preservation agreement. The only minimal rationality to the Board's position is provided by our recent holding in Local 223, Sheet Metal Workers v. NLRB, 162 U.S.App.D.C. 145, 498 F.2d 687 (1974) which held that the validity of a work preservation agreement could only be determined at its inception. The Board could argue that since the work preservation agreement is valid and a later specific secondary intent could not void it, the courts should permit § 8(b)(4) findings in such situations to preserve the intent of § 8(b)(4). The most obvious response is that Judge Wilkey's opinion for the Court in Local 223 does not hold that an agreement originally valid under § 8(e) may be enforced in all circumstances, only that the agreement itself cannot be voided because of one incident of secondary intent in enforcing that agreement. I conclude, as does the Court, that the Board must either completely outlaw the union's action or completely protect it. The Board is not authorized to initiate under §§ 8(b)(4) and 8(e) a compulsory arbitration scheme for the construction industry. That is a project for management and labor to resolve in collective bargaining. The Board's implied response that § 8(e)'s construction industry proviso should cover disputes of the sort we confront in this case must be rejected. See note 22 infra.
While the Board does not explicitly make the argument, one could argue that the principle of Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) should permit the Board to extend the compulsory arbitration schemes specifically approved in §§ 8(b)(4)(ii)(D), 10(k), 29 U.S.C. §§ 158(b)(4)(ii)(D), 160(k) (1970) (compulsory arbitration of work assignment and jurisdictional disputes) and in the construction industry proviso to § 8(e) (union and employer may agree to hot cargo clause but the clause may not be enforced through a strike if the subject of the agreement relates to job site work) to the facts of this case. I am not impressed with this potential argument since it restricts the right to strike by implication. Such restriction was permitted in Lucas Flour because of the union's own agreement to a plenary arbitration scheme. There is no such agreement in this case. See Wellington Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson, 72 Yale L.J. 1547 (1963). See also Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 388, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974) (Douglas, J., dissenting); Banyard v. NLRB, 164 U.S.App.D.C. 235, 505 F.2d 342 (1974).

National Woodwork Manuf. Ass'n v. NLRB, 386 U.S. 612, 644, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

See Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963 (1925); Bedford Cut Stone Co. v. Journeymen Stone Cutters Ass'n, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916 (1927). See generally Winter, Collectively Bargaining and Competition: The Application of Anti-trust Standards to Union Activities, 73 Yale L.J. 14 (1963); note 21 infra.

The sort of judicial review of administrative action involved in this case is not really a direct ruling on a "question of law"; nor is it a ruling on a matter outside of the agency's expertise. Rather it is a ruling that the agency in exercising its expertise in an area of mixed facts and law did not act reasonably in developing a rational interpretation of the Act. This form of judicial review is largely supervisory and should be sparingly used. Cf. Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 672-74, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961).

II.

Having said all this, I think it appropriate to make some brief remarks about what is proscribed by § 8(b)(4). That is not an easy task since the 80th Congress which passed that provision did not specify what the provision was meant to outlaw. All who read the Section agree it can not be taken literally. All who know the history of the Taft-Hartley Act realize that Congress surely meant to outlaw something that unions were engaged in. The project for the courts and the Board has been to formulate the scope of § 8(b)(4)'s proscription. It is instructive to consider the two areas in which the Board and the courts have with some exactitude delineated the scope of § 8(b)(4).

The first area involves those cases in which the union directly seeks to obtain a concession for a specific group of employees from an employer with whom it has no bargaining relationship under the NLRA relating to those specific employees. An example would be where a union pickets an employer with whom it has no collective bargaining agreement to prevent that employer from doing something that would affect the union. In such cases the union is in effect seeking to bargain with the third-party employer. When § 8(b)(4)'s proscription is stated in those terms, it is easily reconciled with the NLRA and particularly the Taft-Hartley Act as a whole. Such an attempt by the union to bargain with an employer, with whom it has no collective bargaining relationship in relation to the affected employees, would conflict with the policy of the Act of free choice for the actual employees of the employer so importuned as to whether they wish to be represented by a union; would conflict with the employer's actual or potential duty to bargaining with his own employees; and could conflict with the union's concomitant duty to represent those employees. The employer may thus be forced to bargain with two unions and the union who seeks to force bargaining must represent two work forces, which may or may not have conflicting interests. The interloper union thus finds no protection in the Act for his bargaining. Indeed, one could construe such a bargaining attempt as a petition for recognition which is itself illegal unless done in conformity with the rather specific provisions of the Act governing recognitional activity.

See NLRB v. Local 825, Operating Eng'rs, 400 U.S. 297, 303-04, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971); Local 814, Teamsters v. NLRB, 167 U.S.App.D.C. 387, 512 F.2d 564 (1975); Local 419, Carpet Layers v. NLRB, 151 U.S.App.D.C. 338, 467 F.2d 392 (1972); Local 1288, Retail Clerks v. NLRB, 129 U.S.App.D.C. 92, 390 F.2d 858 (1968). Cf. Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 674-79, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961); Connell Construc. Co. v. Local 100, Plumbers Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). See also American Radio Ass'n v. Mobile Steamship Ass'n, 419 U.S. 215, 95 S.Ct. 409, 420-21, 42 L.Ed.2d 399 (1974) (Stewart, J., dissenting). The Court in note 44 recognizes this rule. Compare this rule, with United Mine Workers v. Pennington, 381 U.S. 657, 665-66, 85 S.Ct. 1585, 1591, 14 L.Ed.2d 626 (1965):

But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. . . . [T]here is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units . . .. On the contrary, the duty to bargain unit by unit leads to a quite different conclusion. (emphasis added)

Cf. United Mine Workers v. Pennington, 381 U.S. 657, 665-66, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Local 419, Carpet Layers v. NLRB, 151 U.S.App.D.C. 338, 467 F.2d 392, 406-07 (1972); Sperry Systems Mgmt. Div. v. NLRB, 492 F.2d 63, 69 (2d Cir.), cert. denied, sub nom., Local 445, Electrical Workers v. Sperry Systems Mgmt. Div., 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974). The one exception to this rule is the "allied employer" doctrine, see cases cited 467 F.2d at 401 n. 20, which the Board seemingly recognizes as a limitation on its "right to control" rule. See Painters Dist. Council No. 20, 185 N.L.R.B. 930, 932 (1970).

National Labor Relations Act § 8(b)(7), 29 U.S.C. § 158(b)(7) (1970); see San Francisco Local Jt. Exec. Bd., Culinary Workers v. NLRB, 163 U.S.App.D.C. 234, 501 F.2d 794 (1974); Note Recognitional and Organizational Picketing: Limitations on A Non-Certified Union, 47 Minn.L.Rev. 1031 (1963). Of course, if the union does not represent a majority of the relevant employees, any bargaining would violate § 8(a)(2), 29 U.S.C. § 158(a)(2) (1970). Compare Dallas Building Trades v. NLRB, 130 U.S.App.D.C. 28, 396 F.2d 677 (1968).

These same general policies of the Act may also explain the other area in which the courts and Board have reached agreement on the scope of § 8(b)(4) — any union attempts to obtain from its immediate employer an agreement to or practice of refusing to handle non-union goods or to work on jobs where non-union workers will be present violate § 8(b)(4). Professor Lesnick criticizes these cases because they are insensitive to the subtleties of "union intent." However, that criticism ignores what I perceive to be the real import of this rule. A union objective to promote unionization or for "aesthetic" reasons to refuse to handle non-union goods even if directed solely at the primary employer (although I would argue no union objective ever is in intent) is not protected by the Act since the Act is neutral toward unionization and affirmatively seeks to protect employee freedom of choice in deciding upon union representation. The union's objective, not its "intent" to make tactical use of secondary effects, is illegal and "secondary" as a matter of law.

Washington-Oregon Shingle Weavers Dist. Council, 101 N.L.R.B. 1159 (1952), aff'd, 211 F.2d 149 (9th Cir. 1954); see Denver Bldg. Construc. Trades Council v. NLRB, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). See also Local 636, Plumbers Pipefitters (I) v. NLRB, 108 U.S.App.D.C. 24, 278 F.2d 858 (1960); Marriott Corp. v. NLRB, 491 F.2d 367 (9th Cir.), cert. denied sub nom. International Ass'n of Machinists v. NLRB, 491 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974); Local 1976, Carpenters, 113 N.L.R.B. 1210 (1955), aff'd, 241 F.2d 147 (9th Cir. 1957) aff'd on narrow issue, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). The distinction between union signatory agreements such as discussed in the text and union standards agreements such as are in issue in this case has often been recognized by this Court. See Orange Belt Dist. Council No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534, 538-39 (1964) and cases cited. See also Local 24, Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959). The Board's reliance on Local 5, Plumbers Pipefitters, 116 U.S.App.D.C. 100, 321 F.2d 366 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1964) is misplaced since that case involved a jurisdictional dispute between unions, which is substantially similar to a union signatory dispute. Cf. NLRA §§ 8(b)(4)(ii)(D); 10(k), 29 U.S.C. §§ 158(b)(4)(ii)(D); 160(k) (1970). See also NLRB v. Local 825, Operating Eng'rs, 400 U.S. 297, 305-06, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971).

Lesnick, supra note 5, at 1004-06.

The relation of the proscription of § 8(b)(4) to the general policies of Taft-Hartley and the NLRA provides a more firm structure to the secondary boycott provisions, one more easily complied with and one more readily administered. It furthermore has the salutory effect of enhancing Congress' role as the ultimate arbiter of union power and employer power in the collective bargaining process. With attention thus directed to the substantive desirability of the union's bargaining objective, Congress may with the issue so framed give full consideration to the desirability of that objective in balance with its adverse secondary effects. On the other hand, if courts and the Board continue to focus on "union intent", Congress may be deterred from intervention by the heavily factual nature of the inquiry. The energies of management and labor will be spent on subtle questions of evidence while the central questions of the desirability of the objective as against its adverse effects will be submerged in judicial consideration of evidentiary presumptions such as the "right to control." A better institutional position for appellate courts is as a structuring agent, promoting rationalization and consistency in labor policy, and thereby framing issues for legislative and administrative consideration. The history of legislative-judicial-administrative dialogue is most impressive in those situations in which the judiciary considers the legality of a particular bargaining objective after the parties and the Labor Board have formulated the issue and either applies existing legislative policy to that objective or in effect "remands" the issue to Congress for action. Finally, a relation of the proscription of § 8(b)(4) to the policies of the Taft-Hartley Act is probably the best approximation of the true intent of the 80th Congress in passing § 8(b)(4) while leaving Sections 7 and 13, not to mention Norris-LaGuardia, unscathed.

Cf. Bickel Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv.L.Rev. 1 (1957).
Congress when confronted with properly framed issues may take two approaches. First, it may directly restrict union economic power when used in pursuit of a particular bargaining objective. See §§ 8(b)(4)(ii)(D); 10(k), 29 U.S.C. §§ 158(b)(4)(ii)(D); 160(k) (1970) (compulsory arbitration over work assignment and jurisdictional disputes); § 8(b)(7), 29 U.S.C. § 158(b)(7) (1970) (time limitation for organizational picketing and the right to have a Board regulated election); § 8(b)(1), (2), 29 U.S.C. § 158(b)(1), (2) (1970) (limitations of union security objectives); and the provisos to § 8(e), 29 U.S.C. § 158(e) (1970) (union may bargain for agreement not to handle non-union goods or work with non-union workmen but may not strike to enforce such an agreement).
Second, Congress may take steps to mitigate the more harsh effects of union economic power. See, e.g., National Labor Relations Act § 208, 29 U.S.C. § 178 (1970); Railway Labor Act, 45 U.S.C. §§ 154-63, 183-85 (1970); C. Summers H. Wellington, Labor Law 845-883 (1968).
The "institutional" view of the role of the courts suggested in the text would also seem to mitigate the difficulties of judicial application of the stated purpose of § 8(b)(4) — the protection of "neutral" third parties. See, e.g., National Woodwork Manuf. Ass'n v. NLRB, 386 U.S. 612, 627-28, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). These difficulties are illustrated by this case. The Board finds injury to neutral third parties in this case involving a small construction job in Brooklyn and proscribes that injury through § 8(b)(4). However, the Board would not and under current law could not redress through § 8(b)(4) the very real injury to neutral third parties caused by a nationwide truckers strike or a local public employees strike. When one compares the relative seriousness of the injuries to neutral third parties, one must certainly pause to consider whether judicial effort to control secondary effects through § 8(b)(4) is a fruitless if not Sisyphisean task. The inherent inequity in this task is made doubly obvious in "Right to Control" work preservation disputes since construction unions are the only apparent object of § 8(b)(4) in such circumstances due to the peculiar structure of the industry. See note 7 supra.

Cf. National Labor Relations Act § 7, 29 U.S.C. § 157 (1970) ("Employees . . . shall also have the right to refrain from" collective bargaining); §§ 8(a)(1), (b)(1), 14(b), 29 U.S.C. §§ 158(a)(1), (b)(1), 164(b) (1970). See also International Ass'n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); notes 9 20 supra.
Another advantage of the view of § 8(b)(4) enunciated in the text is its correlation with anti-trust doctrine. This correlation has already been suggested in note 15 supra. It may also be seen in a comparison of Local 189, Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965); American Fed'n of Musicians v. Carrol, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460 (1968); Local 24, Teamsters v. NLRB, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959) and Local 1355, ILA (Tulse Hill), 146 N.L.R.B. No. 100, rev'd on other grounds, 332 F.2d 992 (4th Cir. 1964); C. Summers H. Wellington, Labor Law 652 (1968). See also NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Wellington Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L.J. 1107 (1969). The suggestion of this correlation is that if the union's substantive objective is within the scope of mandatory subjects of bargaining, it is exempt from both anti-trust and secondary boycott proscription. For another interesting comparison suggested in part by Professors Wellington and Summers, compare Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910 (1937) with Douds v. Metropolitan Fed'n of Architects, 75 F. Supp. 672, 676-77 (S.D.N.Y. 1948) and the Court's opinion in this case. Indeed, the central definition of "secondary" intent for § 8(e) developed in National Woodwork and applied by this Court in Local 223, Sheet Metal Workers v. NLRB, 162 U.S.App.D.C. 145, 498 F.2d 687 (1974) is a result of the Supreme Court's construction of its antitrust opinion, Allen Bradley Co. v. Local 3, Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945). See also Westinghouse Electric Corp., 150 N.L.R.B. 1574 (1965).
This correspondence between present antitrust doctrine and § 8(b)(4), which focuses on the union's bargaining objective, is consistent with the common law position on secondary boycotts — that union boycott activity is illegal unless justified by a "privilege." See Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896); Holmes, Privilege, Malice and Intent, 8 Harv.L.Rev. 1 (1894). The NLRA which protects mandatory collective bargaining over certain subjects supplies the "privilege" which protects the union's boycott activities. Compare Chicago Bd. of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918); Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963) and cases cited S. Oppenheim G. Weston, Federal Anti-Trust Laws 96-98 (1968) with Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) and United States v. Nat'l Ass'n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). Senator Taft stated expressly that the purpose of § 8(b)(4) was to "reverse the effect of the law as to secondary boycotts" by restoring the common law position. II Legislative History of the Labor Management Relations Act, 1947, at 1106 (1948).
The Supreme Court appeared to recognize the relation of § 8(b)(4) doctrine and anti-trust doctrine in Connell Construc. Co. v. Local 100, Plumbers Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). There the union engaged in seemingly flagrant secondary activity, the Board refused to issue a complaint in an identical case involving the same union and a different subcontractor — either on the basis of its "right to control" doctrine or on the basis of an expansive view of § 8(e) — and the injured employer filed an anti-trust complaint. If anti-trust doctrine and secondary boycott doctrine are fully correlated, then an anti-trust cause of action can properly be viewed as a third party remedy when the Board refuses to issue a complaint. Cf. W.J. Milner Co. v. Local 349, Electrical Workers, 476 F.2d 8 (5th Cir. 1973). See also Connell Construction Co. v. Local 100, Plumbers Steamfitters, supra 421 U.S. at 647-50, 95 S.Ct. 1830 (Stewart, J., dissenting).

As to the result in this case, I concur in Part III of the Court's opinion which establishes that if the union is striking its employer over the violation of a lawful collective bargaining agreement, the union may not be found in violation of § 8(b)(4) unless the objects listed in footnote 44 taint the union's strike. While I am less convinced than the majority that the Board deserves another opportunity to determine whether any of those objects tainted Local 638's strike, I concur in its reasoned judgment that a remand is the proper disposition at this time.

The Board makes one final implied argument. It is suggested that the construction industry proviso to § 8(e) by approving certain types of job sites agreements but forbidding economic pressure brought to enforce such agreements would be undermined by our holding in this case. By permitting economic pressure in support of an agreement which would fall under the proviso to § 8(e) if it involved an agreement with the general contractor, it is argued, this Court is ignoring the Congressional assumption that such agreements may not be enforced through economic pressure. This argument must be rejected. First, a close reading of the legislative history, particularly the Congressional consideration of Denver Bldg. Trades, indicates the only subject of Congressional action was union signatory agreements, economic pressure in support of which would not be approved by my reasoning or the Court's. See Conf.Rep., supra note 1, at 39; Connell Construction Co. v. Local 100, Plumbers Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) citing Drivers, Salesmen, etc., Local 695, Teamsters v. NLRB, 124 U.S.App.D.C. 93, 361 F.2d 547, 553 (1966). Second, we will not extend such a narrow Congressional balance of union and employer economic power beyond the specific subject which motivated Congressional action, when such extension will reduce the effectiveness of the strike weapon. See note 11 supra.
I make one caveat to the reasoning of this opinion. The case sub judice concerns union pressure on an allegedly third party employer proscribed by § (b)(4)(ii)(B), and not union pressure on other employees as proscribed by § 8(b)(4)(i), except to the extent the union here attempted to persuade its own members to participate in the job action. I have not fully explored whether the reasoning applied to § 8(b)(4)(ii)(B) should apply exactly to § 8(b)(4)(i).

[37] MacKINNON, Circuit Judge, with whom TAMM, ROBB and WILKEY, Circuit Judges, join (dissenting):

We review here a determination of the National Labor Relations Board that Enterprise Association engaged in an illegal secondary boycott as proscribed by section 8(b)(4)(B) when it sought to enforce its interpretation of a clause in its collective bargaining contract wherein the employer agreed that certain pipefitting operations would be performed at the jobsite. The majority opinion concerns itself almost entirely with the validity of the "right-to-control test" which it asserts the Board used as the sole test to judge the legality of the Union's action. I disagree with the majority's assessment as to the use of the test, which seems to me thoroughly compatible with the Supreme Court's National Woodwork decision, but more fundamentally this opinion concludes that the majority has taken an unduly restrictive view of the scope of section 8(b)(4)(B).

National Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

I. THE PROHIBITION AGAINST SECONDARY BOYCOTTS

The central issue in this appeal revolves around the secondary boycott provisions of the Labor-Management Relations Act. The statute prohibiting such boycotts was first enacted in 1947 as section 8(b)(4)(A) of the Taft-Hartley Act. It was amended by the Landrum-Griffin Act in 1959 and at that time redesignated as section 8(b)(4)(B). It is this portion of the statute that must be applied to the facts of this appeal, which comes to us following written opinions by an Administrative Law Judge (ALJ) and by a unanimous three-member panel of the National Labor Relations Board.

Here follow the 1947 provisions with the 1959 amendments italicized. Provisions stricken in 1959 appear in brackets.

Sec. 8(b) It shall be an unfair labor practice for a labor organization or its agents —

204 NLRB 760 (1973).

A. Factual Background.

The rendition of the following basic facts by the ALJ is not in dispute:

J.A. 234; see also J.A. 253.

Slant/Fin Corporation (hereafter Slant/Fin), manufacturer of the air-conditioning units, was a New York Corporation with its principal office and place of business in Greenvale, New York.

Austin, the general contractor and engineer for the Norwegian Home for the Aged, was an Ohio Corporation with its principal office and place of business in Roselle, New Jersey. Austin engaged in providing and performing engineering, general contracting and related services in various states of the United States, including New Jersey and New York.

Hudik-Ross Co., Inc. (hereafter Hudik), the heating and air-conditioning subcontractor, was a New York Corporation with its principal office and place of business in New York City. It engaged in providing heating, ventilation, air-conditioning and related services at various construction jobsites in New York state. The Enterprise Association, Local Union No. 638 (hereafter the Union, also the Steamfitters), affiliated with the International Plumbing and Pipefitters Union, AFL-CIO, operated in New York City and is a labor organization as defined by section 2(5) of the Labor-Management Relations Act.

Austin was designated general contractor and engineer for the construction of the Norwegian Home in New York City. In that capacity, Austin prepared the engineering job specifications, employed directly certain Union construction workers, and subcontracted the electrical, plumbing, heating, ventilation and air-conditioning work to various subcontractors.

The building specifications were dated November 29, 1971. With respect to the heating and air-conditioning units they provided:

Furnish at the jobsite Slant/Fin Climate Command Air Conditioners. The unit shall be complete with cabinets, filters, cooling chasis, heating coil fans, main water flow and condensate assembly . . . .

* * * * * *

The main flow and condensate assembly shall be factory installed as an integral part of the unit by the manufacturer . . .

* * * * * *

Manufacturer shall furnish a written guarantee for a period of one year after completion of installation . . . .

* * * * * *

(J.A. 233). (Emphasis added).

These specifications required the subcontractor (Hudik) to install air-conditioning units as manufactured by Slant/Fin complete with the factory installed "waterflow and condensate assembly," i.e., with internal prepiped waterflow and condensate assemblies. With this prepiping, the equipment would be guaranteed by the manufacturer for one year.

Hudik received the subcontract for the heating, ventilating and air-conditioning work as the result of competitive bidding and on January 14, 1972, entered into the subcontract with Austin to install the heating and air conditioning in the building according to the specifications. The Administrative Law Judge found that Hudik was aware of the above-quoted specifications prior to bidding.

J.A. 234.

Hudik had been a union contractor in New York City for many years and its collective bargaining contract with the Union provided for compliance with the following rule:

[52] RULE IX [53] CUTTING PIPE AND MAKING UP FITTINGS * * * * * *

Radiator branches, convector branches and coil connections shall be cut and threaded by hand on the job in accordance with Rule V.

* * * * * *

(J.A. 213). The Union contends that Rule IX required Hudik to assign to its members on the jobsite the work of cutting and threading certain "internal piping" in the air-conditioning units. But the building specifications with which Hudik was obligated to comply required the installation of the completed units as delivered by Slant/Fin with their internal piping for main waterflow and condensate assembly already assembled by the manufacturer. The subcontract called for the installation of 114 air-conditioning units at a total cost of $51,000 (J.A. 192).

On June 22, 1972, the air-conditioning units arrived at the jobsite and were unloaded. Hudik's job foreman contacted Daly, the Union's business agent, and the two men proceeded to inspect the units. The next day, Daly told Austin's project superintendent that members of the steamfitters' union "would not install the Slant/Fin units because the piping inside the units was steamfitters' work and that Rule IX of their contract with Hudik called for them to do the inside piping work on site" (J.A. 235, emphasis added). Daly conveyed the same message to the Hudik superintendent and to Frank Hudik. Hudik pointed out to Daly that the units had been preassembled and pretested at the factory and that the building specifications called for installation of the complete Slant/Fin units.

The complete units were factory prepiped, tested and guaranteed by Slant/Fin, the manufacturer. J.A. 233, 235.

Nevertheless, because the internal piping had been done at the factory, the Union refused to install the Slant/Fin units, and as a consequence held up completion of the building. Austin filed an unfair labor practice charge against the Union alleging that it was engaged in an illegal secondary boycott prohibited by section 8(b)(4)(B). The Union had never met with Slant/Fin and there was no evidence that the Union had ever tried to organize Slant/Fin's employees.

There was testimony that on other jobs the Union had fitted pipe on similar American Standard air-conditioning units on the jobsite, but a witness for the pipefitters pointed out that those units did not have the bypass arrangement or condenser contained in the Slant/Fin equipment. (J.A. 151-155). The engineering sketch of the manufactured unit, see Figure 1 (J.A. 196, 224, 225), indicates that the work the local Union claimed included a number of integrated and necessary internal parts of the complete air-conditioning unit produced and guaranteed by Slant/Fin. The disputed work was substantially more than just cutting and threading the pipe to connect the air-conditioning units to the basic piping that ran throughout the building. It included connecting up two valves and a condenser (J.A. 196, 224, 225) — in other words, the Union sought to perform final assembly tasks on internal parts of the air-conditioning units. See Figure 1. To comply with the demand that the local Union perform that internal work would require the unit to be dismantled, the assembly surrounding the two valves and the condenser to be taken apart, and the local workmen to reconstruct the internal piping, fit new pipe to the valves and condenser, connect them and then reassemble the complete unit. Whether the manufacturer would be expected to furnish the valves and the condenser was not stated.

B. The Decision of the Administrative Law Judge

The finding critical to this appeal in the decision by the ALJ stated:

3. By inducing and encouraging individuals employed by Hudik to engage in a strike and in a refusal in the course of their employment to handle and work upon factory piped heating and cooling units manufactured by Slant/Fin, which Hudik was required by its contract with Austin to install in the Norwegian Home being constructed by Austin as engineer and general contractor, and by coercing and restraining Hudik, an object thereof being to force or require Hudik to cease using factory piped heating and cooling units and cease doing business with Austin and Slant/Fin, Respondent had engaged and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.

(J.A. 243). In his opinion the ALJ analyzed the facts and set forth his reasoning in considerable detail, and as required by both the Supreme Court's decision in National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), and sound adjudicate practice, he considered "all the surrounding circumstances."

"In the instant situation, since Hudik is neither the manufacturer of prepiped units (Slant/Fin) nor is it the engineer and general contractor (Austin) who specified the use of particular prepiped units, it is apparent that the Union's dispute or problem is with Slant/Fin and Austin. Enforcing a union contract with Hudik to prevent Hudik's installing prepiped units that were neither manufactured nor specified by Hudik is simply a use of Hudik as an instrumentality or means of exerting pressure against Slant/Fin and Austin. The Union's real problem and dispute is with the manufacturer of prepiped units and the engineer who specifies that such units are to be used. That Hudik is only a means or instrumentality for exerting pressure against Slant/Fin and Austin with whom the Union has its primary dispute, will appear if we consider two possible situations.
"Example A is where Hudik or similar union subcontractor is invited to bid on a job where prepiped units are to be installed. The Union reminds Hudik of the terms of the union contract requiring on the job piping. Hudik therefore does not bid and does not get the job, or if he does bid and obtains the subcontract, his union employees refuse to install the prepiped units. The construction site, however, in Example A, is in an area where the engineer and general contractor are then able and willing to secure a non-union subcontractor or a subcontractor employing members of a union who are not adverse to installing prepiped units. The job is therefore completed without Hudik and his employees. Assume that this pattern is repeated on other jobs in the area and with the same results. It is clear therefore that in Example A, the Union's problem and dispute is not with Hudik since Hudik, despite voluntary or involuntary compliance with the union contract, is an ineffective means or instrumentality `under all the surrounding circumstances' for exerting pressure against the manufacturer of prepiped units or the engineer specifying their use. The Union's problem or dispute is with the last two mentioned parties, not with Hudik. Union enforcement of the Union-Hudik contract in Example A does not preserve work for the Union but serves to deprive Hudik and its employees of work. The Union does not exist as an organization whose purpose is to deprive its members of work. It is apparent that the Union's dispute is not with Hudik but that it is with the manufacturer and the party specifying prepiped units.
"Example B is of course the instant case. The sole difference between A and B is that in the instant case, B, Hudik is an effective means or instrumentality for exerting the economic pressure of the Union against Slant/Fin, the manufacturer, and Austin, the engineer. In Example A Hudik was an ineffective means or instrumentality against the manufacturer and the engineer. The reason for the difference between being an effective or ineffective instrumentality for pressure in the two examples is revealed by considering all the surrounding circumstances. In the instant case, the matter occurs in New York City, where the construction site is in an area where there are no nonunion steamfitters available or no nonunion mechanical contractors; or, if either of the nonunion categories exist, neither Austin, the union general contractor and engineer, nor Hudik, the union subcontractor could or would see them. That is the reason why the union steamfitters, employees of Hudik, by refusing to install Slant/Fin [units] specified by Austin, are able to use Hudik as an effective means or instrumentality for exerting pressure against Slant/Fin and Austin. The true `culprits' and the parties with whom the Union has its dispute are Slant/Fin, who manufactures prepiped units, and Austin, who specified such units as the heating and cooling units for installation in the Norwegian Home. If prepaid units cannot be installed in the large commercial, public, and industrial buildings in the New York area or in other areas effectively organized by the Union and other building trades union, the manufacture[r] will be materially affected and Austin and other engineers and general contractors will not specify their purchase and use in buildings.
"But the fact that in Example A, above, Hudik would be an ineffective means of pressure by the Union against Slant/Fin and Austin, and, in Example B, the instant case, Hudik is an effective means of pressure in view of all the surrounding circumstances, does not alter the fact that in both situations, Hudik is a means or instrumentality and that the Union's primary dispute is with Slant/Fin and Austin." [Footnotes omitted.] J.A. 238-40.

386 U.S. at 644, 87 S.Ct. 1250. See generally Part II of this opinion.

C. The Board's Decision

Both the Union and the General Counsel filed exceptions to the ALJ's decision with the Board. Upon review of these submissions, the Board decided

to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith, and to adopt his recommended Order.

(J.A. 252).

Although the Board essentially adopted the findings and reasoning of the ALJ, its opinion highlighted the facts that (1) the refusal to work was based on a "valid work preservation" contract with Hudik, (2) Hudik was incapable of assigning the work because the questioned work was never Hudik's to assign in the first place, and (3) the Union had immediately and specifically informed Austin, the general contractor, who did not have a contract with or employ any members of the Union, that it would not permit Hudik to install the air-conditioning units. This latter fact indicates that Austin was an object of the Union's complaint from the very start. The Union knew that Austin as the general contractor was the only party with the power to comply with its demand. Thus, relying on the opinion of the ALJ and its own additional statement, the Board found that the Union was exerting prohibited secondary pressure on Hudik with the object either of forcing a change in Austin's manner of doing business or of forcing Hudik to terminate its subcontract with Austin. The Board concluded that the Union's exertion of pressure on Hudik contravened section 8(b)(4)(B) because it was undertaken for its effect on Austin and Slant/Fin.

The Board's opinion stated, inter alia:

We agree with the Administrative Law Judge that the Respondent thereby violated Section 8(b)(4)(i) and (ii)(B) of the Act. We note that the refusal of the Respondent to let Hudik's employees install the climate control units was based on a valid work preservation clause in the agreement with Hudik, the subcontractor, and was for the purpose of preserving work they had traditionally performed. However, Hudik was incapable of assigning its employees this work; such work was never Hudik's to assign in the first place. Moreover, we note that the Respondent informed Austin, who did not employ employees represented by the Respondent and had no agreement with that Union, that it would not let Hudik install the climate control units involved. Considered together, these facts clearly indicate that the Respondent was exerting prohibited pressure on Hudik with an object of either forcing a change in Austin's manner of doing business or forcing Hudik to terminate its subcontract with Austin. Since the pressure exerted by the Respondent on Hudik was undertaken for its effect on other neutral employers, this pressure was secondary and prohibited by Section 8(b)(4)(B).

Accordingly, we find that by its conduct the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. [Footnote omitted].

J.A. 254. In a footnote the Board further stated:

In view of our finding that Respondent's actions were undertaken for a secondary objective, we find it unnecessary to pass upon the Administrative Law Judge's finding that Austin and Slant/Fin were the primary employers. Hence, we are not deciding herein whether picketing or other actions brought to bear directly against Austin and Slant/Fin would constitute lawful primary activity.

J.A. 254.

D. The National Woodwork Precedent

It is apparent that the literal provisions of the secondary boycott statute were violated: the Union did as "a labor organization . . . induce [and] encourage . . . individual[s] employed by any person engaged . . . in an industry affecting commerce to engage in, a strike [and] . . . refusal in the course of [their] employment to use . . . or otherwise handle or work on . . . goods, articles . . . where . . . an object thereof . . . [was] — (B) forcing . . . [and] requiring . . . [a] person to cease using . . . handling . . . or otherwise dealing in the products of any other producer . . . ." 29 U.S.C. § 158(b)(4)(B). Translating the statute to the facts of this case:

The Union induced and encouraged its steamfitters employed by Hudik to strike and refuse to use, handle and work on air-conditioning units with internal prepiping where an object of their strike and refusal was forcing and requiring Hudik to cease using the products of Slant/Fin and to cause Austin to cease doing business with Slant/Fin.

We are told by National Woodwork, however, that it is not sufficient to find a violation of the "the letter of the statute" and that in determining whether certain action is "within the intention of the makers [of the statute]," we should interpret the Act according to "its spirit." 386 U.S. at 619, 87 S.Ct. 1250. This is always a sound rule of statutory interpretation, but it does not permit wholesale deviation from the provisions of the statute. In any case involving the interpretation of a legislative act the provisions of the statute itself are of primary importance, and the fact that certain conduct is within the literal language of the Act is a weighty and often controlling factor in its interpretation. When we try to overcome the literal applicability of section 8(b)(4) to the facts of this case we have a pretty riddle.

The spirit of the Act is to be found in a combination of (1) the statutory language, (2) the committee proceedings and reports, and (3) the congressional debates. There is no question about the statutory language — it clearly prohibits product boycotts directed to interference in handling or working on articles such as we have here, where the Union seeks to accomplish its objective through secondary pressures. As for the congressional proceedings, National Woodwork notes, 386 U.S. at 624, 87 S.Ct. at 1257, and nn. 12, 13, that Senator Taft and others "frequently [stated] . . . that § 8(b)(4)(A) was designed to eliminate the `secondary boycott.'" The Senate Committee Report reiterated this intent. S. Rep. No. 105, 80th Cong., 1st Sess. 22, 1 Legislative History of the Labor Management Relations Act, 1947 (hereafter 1947 Leg.Hist.), 428; 386 U.S. at 625, 87 S.Ct. 1250. A strong indication that Congress intended the prohibition against secondary boycotts to be strictly applied also is reflected in the extract from the Supplementary Analysis of the bill inserted into the Congressional Record by Senator Taft on June 12, 1947, following the adoption on June 6th of the Conference Report. See note 81 infra.

To solve it we start with a factual situation which presents a secondary boycott as proscribed by the literal language of the Act. The question then arises whether the spirit of that law is violated by the acts of the Union in this instance.

The majority points to National Woodwork for the principle that "[t]he touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees." 386 U.S. at 644-45, 87 S.Ct. at 1268 (emphasis added). In that case both "the agreement" and "its maintenance" were addressed to the immediate contracting employer. However, while the written agreement here may have been addressed to the contracting employer (Hudik), at least in part, the Union addressed the boycott endeavoring to maintain the agreement to employers elsewhere, i.e., to Austin and Slant/Fin. As I read National Woodwork it is not sufficient that the agreement have a primary focus, if its enforcement is attempted by secondary pressures.

Judge Wright's opinion seeks its principal support in the decision in National Woodwork, but the Supreme Court noted that case involved a primary boycott, a fact which clearly distinguishes it from this case. There the general contractor had agreed with the local carpenters' union that carpenters he employed would not handle premachined doors. This building contract gave him discretion to use premachined or blank doors, yet he ordered premachined doors from the National Woodwork Manufacturers Association. He was promptly struck by his union carpenters. On these facts the Supreme Court, in the case which resulted from the petition of the Association, held that when employees strike their immediate employer to secure compliance with demands for legitimate work preservation, the boycott is primary and thus not prohibited by section 8(b)(4)(B).

While the opinion in National Woodwork recognizes that the object of the strike was the preservation of traditional work it does not hold that all attempts to preserve traditional work by striking one's immediate employer constitute permissible primary boycotts. In fact, the opinion states exactly the contrary:

In effect Congress, in enacting § 8(b)(4)(A) [now § 8(b)(4)(B)] of the Act, returned to the regime of Duplex Printing Press Co. and Bedford Cut Stone Co., supra, and barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer [emphasis added] when in fact the activity directed against him was carried on for its effect elsewhere.

386 U.S. at 632, 87 S.Ct. at 1262. That is the situation we confront here. Hudik is essentially neutral in this dispute because it does not have and never did have the power to comply with the Steamfitters' demands. Thus the pressure created by the Hudik employees' boycott of the Slant/Fin units must have been directed at Austin and Slant/Fin as they were the only parties with the power to satisfy the demand that the work be taken from Slant/Fin employees and reassigned to the Union. We should not assume an absurdity and conclude that the Union would expect its demands to be met by an employer who did not possess the power to do so. The logical deduction that Austin and Slant/Fin are the objects of the Union's action is as sound a basis for invoking the prohibition of section 8(b)(4) as would be specific proof that the Union was motivated by disapproval of the labor policies of those parties. The National Woodwork Court noted that "[t]here need not be an actual dispute with the boycotted employer [here Austin and Slant/Fin] . . for the activity to fall within this category [boycotts `tactically calculated to satisfy union objectives elsewhere'], so long as the tactical object of the agreement and its maintenance is that employer . . . thus making the . . boycott secondary in its aim." 386 U.S. at 645, 87 S.Ct. at 1268.

E. Traditional Work

The Union contends, and Judge Wright's opinion concludes, that the strike against Hudik is primary because the strikers are employed by Hudik, because they are striking Hudik, and because they claim that their sole objective is to enforce Hudik's agreement to assign them their traditional work. Because they are striking their immediate employer to enforce a provision of their contract with him, this argument has a surface plausibility. But this superficial analysis of obvious facts does not necessarily lead to the conclusion that the Union's refusal to work on the Slant/Fin air-conditioning units was a primary boycott of Hudik.

As Representative Griffin pointed out during the debate on the Landrum-Griffin Bill, "[w]e must look to the purpose of the picketing in the particular situation." The Kennedy-Thompson analysis of the Landrum-Griffin Bill also identifies the basic flaw in the above reasoning of the majority. It clearly points out the distinction between permitted primary and illegal secondary activity where employees are striking their own employer over wages, i.e.: "[When the picket line at the employees' job site] . . . aims at halting commercial intercourse with [their own employer, it is] (a primary boycott) [but when the aim is] at halting intercourse with persons who have intercourse with him [it is] (a secondary boycott)."

II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereafter 1959 Leg.Hist.), 1615.

Id. at 1707.

The Union is seeking what it asserts is work preservation, but the means it has chosen toward that end — a strike against an employer who never had the disputed work to assign — constitutes secondary pressure. The boycott's purpose is served primarily by the pressure the Union brings to bear on Austin and Slant/Fin through its strike against Hudik. It is the force and direction of this pressure that determines whether the boycott is primary or secondary. The only parties who could be said to have taken the work away from the local union are Slant/Fin, who manufactured the units complete with internal piping, and Austin, who specified the installation of such completed units. The strike insofar as it is against Hudik is not to achieve work preservation because the strike could not preserve work that Hudik never possessed and never had the power to assign.

A panel of this court composed of Judges Bastian, Burger (now Chief Justice), and Wright held it was a violation of section 8(b)(4)(B) for a union to strike its immediate employer in an attempt to enforce a provision of its collective bargaining agreement which prohibited the employer from contracting for work where plumbing was "withheld from the plumbing contract by either the owner or general contractor for the purpose of being installed by other than journeymen plumbers. . ." In that case the union contractor (a plumbing subcontractor) had contracted for the inside plumbing and another contractor who employed members of the Laborers' Union had received the contract for the outside utilities. The collective bargaining provision in that case is even clearer and more direct than the work preservation clause here, but nevertheless there was no dispute that the union strike to enforce its provision violated section 8(b)(4)(B). Local 5, Plumbers Pipefitters v. NLRB, 116 U.S.App.D.C. 100, 321 F.2d 366, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963).

What the Union is attempting to do by its strike is to compel Hudik to acquire work its members can perform, and this goal is to be accomplished by the secondary pressure that the strike against Hudik brings to bear upon Austin and Slant/Fin: specifically, Hudik can no longer install air-conditioning units necessary for the completion of the building according to contract specifications. Unlike the strike in National Woodwork, this action is not a primary boycott against an immediate employer seeking to compel him to exercise discretion over work assignments committed to him by the general contract in a manner compatible with the operative terms of a collective bargaining agreement; instead, this is a secondary boycott against the Union's immediate employer (Hudik) seeking by the pressure such a strike brings to bear on third parties (Austin and Slant/Fin) to cause the immediate employer to acquire certain traditional work so he can assign it to his employees.

The determination whether a boycott is secondary involves consideration not only of the objective of the strike in terms of working conditions, but also of the means sought to achieve that objective. As the National Woodwork Court noted, the "central theme" of section 8(b)(4)(B) is "the protection of neutrals against secondary pressure." 386 U.S. at 627, 87 S.Ct. at 1259. Thus the statute does not tolerate boycotts involving secondary pressures conducted to preserve traditional work, nor is there anything in its legislative history to support that conclusion. The object, spirit and language of the statute all coalesce in a conclusion that traditional work can be preserved only by a primary boycott and that it is unlawful to use secondary pressure to achieve an otherwise legitimate purpose. Here the pressure on Hudik was secondary and hence the strike against Hudik is proscribed by the letter and spirit of § 8(b)(4)(B).

In Local 5, supra, this court stated:

The Board correctly counters with the argument that Sand Door[5] disposes of this suggestion. That case teaches us that regardless of the legitimacy of the end sought by the union, it cannot engage in secondary pressure to obtain it. We find nothing in this case which distinguishes it from that rule. Admittedly, clause 32 is not identical to the "hot cargo" provision in Sand Door but that case is not limited to "hot cargo" clauses.

Id. 116 U.S.App.D.C. at 104, 321 F.2d at 370.
Local 1976, United Brotherhood of Carpenters' etc., Union v. N.L.R.B., 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958); see also N.L.R.B. v. Bangor Building Trades Council, 278 F.2d 287 (1st Cir., 1960).

F. The Secondary Boycott Conducted by Local No. 3 in New York City

The majority opinion in National Woodwork sought to identify "Congress' purpose in enacting" section 8(e), a provision closely related to and enacted at the same time as section 8(b)(4)(B). The Court indicated that the answer was to be found "from an examination of the history of congressional action on the subject." 386 U.S. at 620, 87 S.Ct. at 1255. The opinion proceeded to set out and discuss the extensive statutory history of certain applicable labor legislation. 386 U.S. at 620-24, 87 S.Ct. 1250. Next to the language of the statute itself, no better indicia of congressional intent can be found than that provided by a close examination of the complete legislative history of the section.

This legislative history begins with the enactment in 1947 of section 8(b)(4)(A), which was part of the Taft-Hartley Act. That Act was drafted and enacted by the 80th Congress over the President's veto following very extensive labor hearings in both the House and Senate. In the course of those hearings there were many references to secondary boycotts. In the House of Representatives, where the legislation originated, the Hartley Bill, H.R. 3020, brought secondary boycotts within its definition of "illegal boycott" (Sec. 2(14)). An illegal boycott was within those "unlawful concerted activities" (Sec. 12(a)(3)) for which the union and its members were made subject to a suit for damages and to deprivation of their rights under the Act to the same extent as a person found to have engaged in an unfair labor practice (Sec. 12(b) and (d)).

See note 2 supra.

See National Woodwork, 386 U.S. at 633 n. 21, 87 S.Ct. 1250; see also I 1947 Leg.Hist. xliv.

The term "illegal boycott" means a concerted refusal, or threat of concerted refusal, by individuals in the course of their employment —

(A) to render services, where an object of the refusal or threat is to force a person to do business or to cease doing business with another person; or

(B) to render services, where an object of the refusal or threat is to force a person to deal with or to cease dealing with a labor organization as the representative of individuals other than themselves; or

(C) to use, install, handle, transport, or otherwise deal with particular articles, materials, or commodities by reason of the origin or proposed destination thereof, or by reason of the character of a prior or proposed future handling thereof, or by reason of the policies or practices of any person (not their employer) having any direct or indirect relationship thereto.

I 1947 Leg.Hist. 168-69. That the House intended the bill to cover boycotts extending beyond work assignment claims was evident since the bill dealt with such problems as "jurisdictional strikes," which were also prohibited. Id. at 169, 205.

Id. at 205.

Id. at 168, 205.

In the Senate the subject matter of section 2(14)(A) and (C) of H.R. 3020, provisions dealing with "illegal boycotts," was placed in section 8(b)(4)(A), which tracked closely the language of the House bill. In the Senate the section assumed its present basic character as a prohibition against an unfair labor practice. But it was the House bill which first attached union demands upon employers to "cease doing business" with others and refusals "to use, install [or] handle particular articles." The House Committee Report made it clear that in addition to employer-union activities the bill was also aimed at removing "direct restraints of trade."

Id. at 239-40. Cf. note 2 supra.

Illegal boycotts take many forms. Often they are to compel employers to force their employees into unions or to give a union control over them as their bargaining agent in violation of the Labor Act itself. Sometimes they are direct restraints of trade, designed to compel people against whom they are engaged in to place their business with some other than those they are dealing with at the time, or vice versa. The effects of boycotts upon business, and particularly upon small commercial enterprises in metropolitan centers, such as New York, Philadelphia, and Pittsburgh, have often been disastrous.

The sentence in italics identifies an objective of the boycott we are dealing with here.

The House accepted the statutory framework adopted by the Senate and the Senate's redraft of section 8(b)(4)(A); therefore the Senate Report is informative (although not to the exclusion of the House Report) as to the congressional intent of the provision finally enacted.

Id. at 548.

Id. at 407-504, see especially p. 428. The "cease doing business with another person" and the "refusal . . . to install [or] handle" provisions were incorporated into the Senate bill almost in haec verba. Id. at 7.

The statements on the floor of Congress and the committee reports all make some contribution toward clarifying the legislative intent, but no single item of legislative history is any more important to the problem posed by this appeal than the following quotation with respect to section 8(b)(4)(A) from the Senate Report in 1947 on the Senate bill:

This paragraph [ § 8(b)(4)(A)] also makes it an unfair labor practice for a union to engage in the type of secondary boycott that has been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of some labor organization other than local No. 3. (See testimony of R. S. Edwards, vol. 1, p. 176 et seq.; Allen Bradley Co. v. Local Union No. 3, I. B. E. W., 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939.)

S. Rep. No. 105 on S. 1126, 80th Cong., 1st Sess. 22, 1 Leg.Hist. 428 (emphasis added). While the secondary boycott conducted by Local No. 3 in New York City encompassed manufacturing, distribution, installation and repair, it is significant that the Senate Report on the bill chose to mention only the installation aspect. The National Woodwork opinion refers to the passage above, but because it quotes only the first sentence the decision does not reveal the very clear intent that Congress indicated by its specific reference to the particular testimony of R.S. Edwards before the Senate committee on Local No. 3's secondary boycott. 386 U.S. at 619-20, 87 S.Ct. 1250. The Committee Report also cited the decision in Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), where the Supreme Court considered the secondary boycott activities of Local No. 3. Neither the reference to Edwards' testimony nor that to Allen Bradley indicates that Congress intended section 8(b)(4)(B) to be given so narrow a construction as to exclude the secondary boycott that exists here. Let us then examine the Edwards and Allen Bradley references as an aid in ascertaining congressional intent.

The Edwards testimony was selected from over 2400 pages of Senate hearings.

G. Edwards' Senate Testimony and the Conspiracy in Allen Bradley

The secondary boycott conducted in New York City by Local No. 3, IBEW is best described in Edwards' testimony rather than in the opinion in Allen Bradley, since Edwards' testimony was directed to the labor law aspects of Local No. 3's activities, while the opinion in Allen Bradley related primarily to antitrust issues. In fact the Supreme Court decided that under the law as it existed prior to outlawing secondary boycotts, the union's conduct would have been valid if it had acted alone and not conspired with employers. Edwards testified that Local No. 3 was involved in a monopoly in New York City of the "complete manufacture, distribution, installation and maintenance of all electrical-construction materials." Local No. 3 was for all practical purposes the only electrical "installation" union in New York City. It was the installation restrictions as enforced by the conspiracy, prohibiting local electricians in New York City from doing any work on electrical fixtures and other electrical materials after their manufacture, to which the product boycott prohibitions of section 8(b)(4)(A) of the Labor Act were particularly directed. The Department of Labor had received a number of complaints that Local No. 3 was "declining to install electrical equipment unless it bears the label of that organization [ i.e., Local No. 3]." "Even materials manufactured by other IBEW locals outside the Greater New York district are black listed." Prior to passage of section 8(b)(4)(A) the boycott imposed by Local No. 3 was successful in requiring that electrical fixtures or installations manufactured elsewhere be "dismantled and the wire taken out of them, and then" rewired on the job by the local union before they could be installed in New York City.

1 Senate Hearings on S. 55 and S.J.Res. 22, 80th Cong., 1st Sess. 176-204 (1947).

But see Justice Roberts' concurring opinion. 325 U.S. at 813-20, 65 S.Ct. 1533.

See note 16 supra. This testimony was corroborated by the decision in Allen Bradley, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945).

1 Senate Hearings on S. 55; S.J.Res. 22, 80th Cong., 1st Sess. 181 (1947).

Id. at 187.

Id. at 183.

Id. at 188.

Thus, in its essential features, and particularly as it related to installation abuses, the boycott by Electricians Local No. 3 in New York City described in Edwards' testimony was very close to that which the Steamfitters' Union here brought against Hudik. Both unions refused to install manufactured articles to protect the on-site job work of their union members, and the only way their demands could be met was to allow the manufactured articles to be dismantled on site and permit the members of the local union to redo the work already done by the manufacturer, and for the future, for the employer having charge of the installation to cease doing business with the manufacturer unless it changed its manufactured articles to permit on-site workers to do some of the final assembly work. The result in the case of Local No. 3 would be the delivery to the installers of incomplete fixtures without internal wiring (or dismantling and rewiring) and with Local No. 638 (the Steamfitters) it would be the delivery of incomplete air-conditioning units without internal piping (or dismantling and repiping).

The Senate Report clearly indicated that the "will not handle or work on" provisions of section 8(b)(4)(A) were aimed at precisely the type of secondary boycott that exists here. And since, as National Woodwork states, "the basic thrust of [section 8(b)(4)(A)] was not expanded by the Landrum-Griffin [1959] amendments," the same interpretation is to be given to the present section 8(b)(4)(B). The addition in 1959 of the specific proviso protecting primary boycotts that were not "otherwise unlawful" did not change the intent of the section. What the proviso did was merely make explicit that which was previously implicit. The statement that Congress intended to make secondary boycotts illegal clearly implies that primary boycotts are legal.

S. Rep. No. 105, 80th Cong., 1st Sess. 22, I 1947 Leg.Hist. 428.

386 U.S. at 623-24, 87 S.Ct. at 1257.

It is settled law that the National Labor Relations Act does not require any employee to cross a primary picket line and that pickets may request him not to cross the picket line ( NLRB v. International Rice Milling Company [ 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277]). The language of the "hot cargo" ban in S. 1555 — which your committee adopted — did not impinge in any way on existing law concerning the crossing, or not crossing, of primary picket lines by employees. However, in order to set at rest false apprehensions on this score, the committee appended the disclaimer proviso which appears in section 705(a)(2) of the bill.

H.Rep. No. 741, 86th Cong., 1st Sess. 80, I 1959 Leg.Hist. 838, U.S. Code Cong. Admin. News 1959, p. 2479.

The purpose of this provision is to make it clear that the changes in section 8(b)(4) do not overrule or qualify the present rules of law permitting picketing at the site of a primary labor dispute. This provision does not eliminate, restrict, or modify the limitations of picketing at the site of a primary labor dispute that are in existing law. See, for example, NLRB v. Denver Building and Construction Trades Council, et al. ( 341 U.S. 675 [ 71 S.Ct. 943, 95 L.Ed. 1284] (1951)); Brotherhood of Painters, Decorators, and Paper Hangers, etc., and Pittsburgh Plate Glass Co., (110 NLRB 455 (1954)); Moore Drydock Co. (81 NLRB 1108); Washington Coca Cola Bottling Works, Inc. (107 NLRB 299 (1953)).

H.Conf.Rep. No. 1147, 86th Cong., 1st Sess. 38, I 1959 Leg.Hist. 942, U.S. Code Cong. Admin.News 1959, p. 2510.

I 1947 Leg.Hist. 428.

H. The Majority Opinion and Right to Control

Faced with the fact that the letter of the statute is clearly violated and that the ALJ and the NLRB after considering all the surrounding circumstances found a secondary boycott in violation of the Act, the majority opinion launches into an attack on the so-called right-to-control test, which it asserts the Board used as the sole basis for its decision. In this respect the majority opinion is in error. The ALJ clearly considered all the "surrounding circumstances" and the Board affirmed his "rulings, findings and conclusions" (J.A. 252) insofar as they were consistent with its decision and adopted his recommended Order. Since the opinion of the ALJ was consistent in almost every respect with the Board's decision, the Board indicated that it relied on all the surrounding circumstances of the boycott to the same extent as the ALJ. Thus the basic attack of the majority opinion, the claim that the Board based its decision only on the right-to-control test and failed to take into consideration all the surrounding circumstances, has no foundation in fact.

See especially note 6 supra.

Moreover, after devoting most of its opinion to an attack on the concept of right-to-control as a complete test to determine whether a boycott is primary or secondary, the majority in its closing paragraph finally comes to reality and admits that control over disputed work does have a vital place in determining the essential issues:

However, in remanding in Local 742, supra, and Local 636, supra, we held that legal control in the struck employer over assignment of the work which a union professes a desire to preserve, while not alone dispositive, may be considered by the Board along with other factors [emphasis added] suggested by the National Woodwork Court in determining the union's actual objective.

Majority Op., 172 U.S.App.D.C. at ___-___, 521 F.2d at 904-905. That is precisely the manner in which the ALJ and the Board did weigh and evaluate the demand of the Union and Hudik's inability to meet the work assignment demands of the Union.

It must also be noted that since right-to-control is recognized as a part of the test to be applied in such cases, instances may well arise where the outcome of its application will prove to be the decisive factor. In passing the original secondary boycott restriction, the House of Representatives forecast the use of a right-to-control test when it indicated that it intended to proscribe those boycotts where "the employers are powerless to comply with the demands giving rise to the [boycotting] activities . . . ." H.R. Rep. No. 245, 80th Cong., 1st Sess. 23 (1947), I 1947 Leg. Hist. 314.

This comment recognizes the force and validity of a right-to-control test and the unfairness of permitting a strike against an employer who lacks the right to control the decision. Even where right-to-control is not decisive, in almost any case it will be a factor entitled to very substantial weight because it measures the ability of the employer to comply with the union demands. Law and logic compel the conclusion that the ability or inability of two individuals to comply with a demand is a very material factor in determining whether one or the other is the true object of the demand.

II. THE RIGHT-TO-CONTROL TEST

By 1967 seven Circuit Courts of Appeals had reviewed the right-to-control test: each circuit had validated the test without dissent. In that year the Supreme Court in National Woodwork articulated the standards by which primary and secondary activity should be distinguished. The Court upheld the Board's determination that the particular work preservation clause at issue was not violative of section 8(e) of the Act and that enforcement of the provision against a primary employer did not contravene section 8(b)(4)(B), but specifically withheld judgment on the propriety of the right-to-control test upon which the Board's conclusions in that case were founded. Yet several circuits thereafter reversed their prior decision sanctioning the test, based upon language in National Woodwork which supposedly disapproved exclusive use of the test by the Board.

See Local 5, Plumbers Pipefitters v. NLRB, 116 U.S.App.D.C. 100, 103, 321 F.2d 366, 369, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963); Local 636, Plumbers Pipefitters v. NLRB, 108 U.S.App.D.C. 24, 30, 278 F.2d 858, 864 (1960); NLRB v. Enterprise Association, Local 638, Plumbers Pipefitters, 285 F.2d 642, 645 (2d Cir. 1960); NLRB v. Local 1694, Longshoremen, 331 F.2d 712, 716-17 (3d Cir. 1964), aff'g 137 NLRB 1178; Ohio Valley Carpenters District Council v. NLRB, 339 F.2d 142, 145 (6th Cir. 1964); American Boiler Mfrs. Ass'n v. NLRB, 366 F.2d 815, 882 (8th Cir. 1966).

29 U.S.C. § 158(e) (1970) provides:

(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work . . . .

386 U.S. at 616 n. 3, 87 S.Ct. 1250.

See NLRB v. Local 164 IBEW, 338 F.2d 105, 107-10 (3d Cir. 1968); American Boiler Mfrs. Ass'n v. NLRB, 404 F.2d 556, 561 (8th Cir. 1968); Western Monolithics Concrete Prods., Inc. v. NLRB, 446 F.2d 522, 526 (9th Cir. 1971); Beacon Castle Square Bldg. Corp. v. NLRB, 406 F.2d 188, 192 n. 10 (1st Cir. 1969) (dictum). Contra, George Koch Sons, Inc. v. NLRB, 490 F.2d 323 (4th Cir. 1973); cf. Associated General Contractors of California v. NLRB, 514 F.2d 433 (9th Cir., filed Mar. 28, 1975).

On two occasions this court has announced similar decisions. The majority now insists once more that the theoretical underpinnings of the right-to-control test were completely destroyed by National Woodwork. I am more inclined to accept at face value the Court's statement that the test was not under consideration in that case. I thus dispute the basic premises of the majority's opinion, and conclude that the reasoning of National Woodwork is compatible with the use of the right-to-control test to the extent that it was used in this case.

Local 742, Carpenters v. NLRB, 144 U.S.App.D.C. 20, 444 F.2d 895, cert. denied, 404 U.S. 986, 92 S.Ct. 447, 30 L.Ed.2d 371 (1971); Local 636, Plumbers Pipefitters v. NLRB, 139 U.S.App.D.C. 165, 430 F.2d 906 (1970). My concurrence in those decisions was based on the use of the right-to-control test as an exclusive and per se standard.

A. The Surrounding Circumstances

The majority admonishes the Board to scrutinize the "realities" of the Union's dispute with Hudick-Ross, and insists that the single-minded right-to-control formula is devoid of practicality as well as theoretically bankrupt. A closer look at the findings and conclusions of the Administrative Law Judge (ALJ) which the Board adopted reveals that the test, as it was applied to the facts of this controversy, furnished a distinctively realistic basis for interpreting the relative positions of Enterprise and Hudik-Ross and a thoroughly practical determination of the objects of the Union's economic action.

See text, 172 U.S.App.D.C. at ___-___, 521 F.2d at 890-892 and note 8 supra.

1. The Contractual Framework

The ALJ determined that Austin was both general contractor and engineer for construction of the Norwegian Home for the Aged. Significantly, "Austin prepared the engineering job specifications for the Norwegian Home." By the time Austin subcontracted the heating, ventilating and air-conditioning work on the project to Hudik-Ross, it had contracted for the purchase of prepiped Slant/Fin climate control units.

J.A. 233. These facts parallel the situation in National Woodwork. There Frouge, the general contractor for the Naval Capehart Housing Project, exercised dominion over relevant specifications. The significant difference between the cases is evidenced in the ALJ's conclusion that:

The Government's specifications for this job with reference to the type of doors required set forth the standards to be followed. However, neither the specifications nor Frouge's contract with the Navy required the doors to be precut or prefitted or premachined.

149 NLRB 646, 652.

In his conclusions of fact, the ALJ advanced an interpretation of the work preservation agreement between Hudik and Enterprise.

[I]n my opinion, the instant contract between Hudik and the Union, in providing that pipe would be cut and threaded on the job, necessarily implied that it referred to pipe within Hudik's control and which could be cut on the job. Neither Hudik nor the Union in their contract could prescribe nor were they prescribing the treatment of pipe that was within or had been within the control of some other party . . ..

The ALJ buttressed his interpretation of the work preservation agreement with a practical analysis of the benefit the Union hoped to derive from the provision.

[W]e might presume that the Union would have been happy and content if Hudik had never sought or received the Norwegian Home contract or if Hudik would breach his subcontract as soon as the Union reminded Hudik of Rule IX of the Union contract. But, if Hudik, an employer of union steamfitters, does not bid on jobs and does not secure subcontracts, how does such a situation preserve or increase work for Hudik's union steamfitters . . . .

Implicit in this observation is a reality to which the majority gives lip service but which it fails to apprehend: Hudik could not decline to bid on projects with prefabrication specifications and continue to be a competitive subcontractor.

Regardless of the validity of the ALJ's construction of Rule IX of the collective bargaining agreement, his tacit observation that trade unions' work preservation agreements almost inevitably conflict with contractual design specifications evinces a practical understanding of the true nature of the dispute between Hudik and Enterprise. Underlying his decision is the determination that the fundamental responsibility for prefabrication specifications in the construction industry falls on architects, engineers, and general contractors, and that boycotts by craft unions against subcontractors necessarily have as a primary object the application of pressure to those third parties who actually require the use of factory-prepared products. A recital of the surrounding circumstances that the ALJ examined to arrive at this conclusion demonstrates that he was concerned less with the locus of legal or contractual hegemony over disputed work than with the source of practical or effective control over prefabrication specifications.

See generally id. at 237, 238.

2. The Labor Situation in New York

In analyzing the dispute between Enterprise and Hudik, the ALJ gave particular emphasis to three distinct points. First, Austin, in its capacity as "engineer and general contractor for the entire job, had made an engineering and business judgment that the Slant/Fin units were to be used on the project . . . ." The ALJ noted Austin's awareness that "these units were factory prepiped, tested, and guaranteed by the manufacturer," apparently to suggest the factors that prompted the use of prefabricated climate control units. In discussing analogous contractual predicaments, both hypothetical and real, he pointedly identified the parties who controlled the specification of prefabricated products: in each case, an architect, engineer, or general contractor. His drift was unmistakable: pressure for the modification of prefabrication policies must focus on these principals or on the manufacturers of prefabricated goods.

Id. at 236.

Id.

Second, the ALJ identified the means by which pressure could be brought to bear on these responsible parties. He drew a distinction between "effective" and "ineffective" "means or instrumentalit[ies] . . . for exerting pressure against the manufacturer of prepiped units or the engineer specifying their use." In a thoroughly unionized setting, subcontractors could influence project specifications by declining to bid on projects which denied their employees the right to perform traditional unit work. The threat or enforcement of a boycott by those employees or unions representing them would deter subcontractors from bidding on projects with such specifications, and thus similarly discourage the use of prefabricated goods. But in a nonunionized area subcontractors would clearly be ineffective instrumentalities for exerting these pressures: the sole consequence of their actions would be the hiring of nonunion labor to install prepiped units. In obeisance to National Woodwork, the ALJ noted that the distinction was meaningful only in the context of "all the surrounding circumstances" — evidently, it was drawn to shed light on the practical purposes of work preservation boycotts. He concluded after his analysis of all the relevant facts that "Hudik [was] only a means or instrumentality for exerting pressure against Slant/Fin and Austin with whom the Union has its primary dispute. . . ."

Id. at 238; see also note 8 supra.

The significance of the distinction between "effective" and "ineffective" means of exerting pressure escapes the majority, which can only conclude that it is "absolutely irrelevant" to the issue of Hudik's neutrality. Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 892 n. 9. But it is inaccurate to ascribe this view to the ALJ. He drew the dichotomy to demonstrate in bold relief the purpose of the Union's action, the bringing to bear of pressure on those parties who specified the use of prefabricated products, and thus to highlight Hudik's incidental role in the controversy. The statute requires proof that an object of an economic action be proved to be secondary, and so the ALJ turned to the most important single "surrounding circumstance," the balance of power in the New York construction industry, to find an absence of nonunion labor in that area, bolstering his belief that the Union's purpose was to influence the policies of Austin and Slant/Fin. A contrary finding that ample nonunion replacement labor rendered Hudik an ineffective means or instrumentality for pressuring parties to the Norwegian Home contract would have undermined his theory, for the motive and expectation he imputed to the Union would in that case have been unreasonable. His announcement that "in both situations" Hudik was just a "means or instrumentality" signalled that in either event Hudik was not the object of the Union's action, while the effective/ineffective distinction went to the validity of the conclusion that Austin and Slant/Fin were in fact such objects.
I sympathize with the majority's hesitancy concerning the use of the word "neutral," and concede that Hudik is not neutral in the sense that it is uninvolved with, or unaffected by, the instant dispute. The source of Hudik's legal neutrality is the fact that the Union in these circumstances cannot rationally boycott Hudik to secure the right to perform internal piping on the heating and cooling units, without intending to pressure Austin and Slant/Fin, since only Austin and Slant/Fin are capable of acceding to the Union's demands. Thus Hudik is neutral with respect to the particular remedy of economic action which the Union invoked to redress its grievances. This line of reasoning does not confuse "objects" and "effects" of economic actions, as the majority fears, see Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 900 n. 36. Where secondary consequences are essential to the success of a strike, and are in fact the reason for its existence, the strike has a secondary object. Cf. note 78 infra.

J.A. 238.

Third, the ALJ examined the circumstance most relevant to the instant case: the dearth of nonunion labor in New York City, site of the Norwegian project.

[I]t is an appropriate subject of official notice that in New York City and probably in all or most of the major cities in this country, the building and construction industry is unionized, certainly with respect to major industrial, commercial, and public construction.

This aspect of the ALJ's findings is an effective response to the argument that the Board may not generalize concerning the relative bargaining positions of sub- and general contractors, but must consider the surrounding circumstances of each individual labor dispute. While the ALJ relies — and must rely — in part on experience in assessing the ability of Hudik to influence Austin's prefabrication specifications, he examines the factors which might rebut his presumption that subcontractors cannot directly influence the decision of an engineer or general contractor to use prefabricated products. Contrary to the majority's insistence that it is virtually impossible to prove the absence of an imputed secondary objective, Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 890 n. 9, the Board's review of circumstances determining the degree of a subcontractor's control may indicate an unequivocally primary purpose. Here, if unions did not control the labor supply in the New York construction industry, J.A. 239 n. 10, or if Hudik were deemed an ineffective instrumentality of pressure on Austin, the analysis by the ALJ might well have yielded a contrary conclusion.

The ALJ asserted that the Norwegian Home was "in an area where there are no nonunion steamfitters available or no nonunion mechanical contractors; or, if either of the nonunion categories exist, neither Austin, the union general contractor and engineer, nor Hudik, the union subcontractor could or would see them." Thus Hudik was an effective instrumentality for pressuring the "true `culprits,' and the parties with whom the Union has its dispute[:] Slant/Fin, who manufactures prepiped units, and Austin, who specified such units as the heating and cooling units for installation in the Norwegian Home." Alternative union labor would not be available, for "in the construction industry it is the unions that control the labor supply and if the union steamfitter employees of Hudik on the Norwegian job refuse to work, other steamfitters will not be available to Hudik or to anyone else to perform work on the job." The consequence of a Hudik boycott was clear:

Id.

Id.

Id. n. 10.

If prepaid [prepiped] units cannot be installed in the large commercial, public, and industrial buildings in the New York area or in other areas effectively organized by the Union and other building trades unions, the manufacture[r] will be materially affected and Austin and other engineers and general contractors will not specify their purchase and use in buildings.

Finally, the ALJ fit these factual parameters into the legal equation of section 8(b)(4)(B) and concluded that the Union's dispute was not with the actions of Hudik, but rather with the labor policies that Austin enforced through its specifications and with the products distributed by Slant/Fin. Because Hudik was accorded a secondary role in the conflict, the boycott by the Union violated the Act's prohibition of economic action directed toward neutral employers.

3. The Order of the Board

The Labor Board affirmed "the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent" with its own brief Decision and Order, and adopted his recommendation that the Union be ordered to discontinue its boycott of Hudik. The Board's principal exception to the ALJ's findings was its refusal to rule, as he had, that economic actions directed against Austin and Slant/Fin would constitute lawful primary activity. It nevertheless concurred in his determination of Hudik's neutrality. To reinforce his conclusion that Austin was the true object of the boycott, the Board noted that

the Respondent informed Austin, who did not employ employees represented by the Respondent and had no agreement with that Union, that it would not let Hudik install the climate control units involved.

The Board also articulated a point that was implicit in the findings of the ALJ, that the ultimate purpose of the Union's action was the preservation of work its member employees had traditionally performed. But the means adopted by the Union to achieve this goal offended the Act's proscription of secondary boycotts. "Since the pressure exerted by the Respondent on Hudik was undertaken for its effect on other neutral employers, this pressure was secondary and prohibited by Section 8(b)(4)(B)."

Id.

B. The Significance of "Control"

The unrealistic, undimensional per se control test the majority discredits is a straw man. The Board does not employ a per se formulation, which might well violate the stricture of National Woodwork that the focus of a union's action must be determined from all the surrounding circumstances; instead, the Board relies on a prima facie standard. By this test, a union may not boycott an employer who lacks the right to control the assignment of disputed work, provided that the employer has not voluntarily relinquished that control. The redeeming feature of this criterion is that it permits and even mandates the conclusion that the union acted properly in launching an economic action whenever "the employer's loss of power to assign the work is the result of his own efforts to instigate the subcontracting to another of work subject to his work preservation agreement with the union" — in the majority's parlance, whenever he "binds his own hands." In such a case the employer would cease to be neutral, and would be termed "offending" by virtue of his voluntary action surrendering legal control of the disputed work.

Brief for the NLRB at 5 n. 4; see also Painters District Council No. 20, 185 NLRB 930, 932 (1970); Local 120, Plumbers Pipefitters, 168 NLRB 991, 992 (1967).

Id.

The situation which the Board contemplates would shift responsibility for the dispute to the employer is precisely that of National Woodwork. Discretion in the specification of prefitted doors rested with Frouge, the general contractor. His unilateral decision to use premachined rather than "blank" doors prompted the Union's boycott. By contrast, here the specification of prepiped climate control units was fixed by a provision of the contract on which Hudik bid.

See notes 46 47 supra.

That the factual differences between National Woodwork and this case are sufficient to justify the legal distinction the Board urges is suggested by the ALJ's conclusion that Hudik's alternatives were either to bid on the Norwegian Home contract in spite of the contractual conflict or to have insufficient work for its employees. The Board had expert knowledge of the competing forces within the construction industry — perhaps the exclusive domain of the complex and contradictory subcontracting practices we consider here. The wiser course is to recognize and respect the distinction the Board observes between "offending" employers — most commonly, engineers and general contractors — who actively and by choice assign traditional unit work in derogation of work preservation agreements, and "unoffending" subcontractors who enter into contracts with prefabrication specifications rather than pursue the economically disastrous course of declining to bid on such contracts.

The majority argues that "for all relevant analytical purposes the situation of the . . employers [in this case and in National Woodwork] is identical." Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 896 n. 25. One of the parallels drawn to support this contention is the claim that in both cases "the employer could comply with the union's demands before breaking the contract." Id. We deem it a relevant analytical distinction that in National Woodwork, Frouge, the general contractor and the target of the strike at issue, was able to comply with the union's demands and simultaneously continue work on the project, while Hudik could comply only by declining to bid for Austin's subcontract or for that of any other general contractor intent on utilizing prefabricated goods.
The realism of this approach lies in its recognition that an employer who simply bids on a contract with specifications which conflict with his own work preservation agreement is not truly "offending": the economics and practicalities of his occupation leave him little choice. In these circumstances he is a neutral caught between the union on one side and the general contractor and manufacturer on the other.
The majority suggests as another alternative that Hudik and other subcontractors similarly situated should by prior arrangement offer their employees compensation for traditional work which cannot be performed at jobsite. The short answer to this proposal is that it is not necessary: if the work preservation agreement at issue is construed to reserve to the union all traditional work and not simply that over which the employer has control, then a contractual right to damages enforceable by lawsuit may have accrued to the union. Adjustment by prior arrangement is a desirable solution, but where by ignorance or design an employer enters a contract which denies him the right to preserve traditional work for his employees, judicial enforcement is an established remedy clearly preferable to economic action which violates § 8(b)(4).

The Board treats the right-to-control test as a standard applicable to the construction industry, and none of the parties cites a case in which the test was applied in a different context.

Compare Local 636, United Association, and Mechanical Contractors of Detroit, 177 NLRB 189, 190 (1969) with Painters District Council No. 20, 185 NLRB 930, 932 (1970); and Local 438, Plumbers and Pipefitters, 201 NLRB 59, enforced, George Koch Sons, Inc. v. NLRB, 490 F.2d 323 (4th Cir. 1973), with Local 120, Plumbers Pipefitters, 168 NLRB 991, 992 (1967).

The legal consequence of this distinction is the classification of subcontractors like Hudik who enter contracts with specifications contrary to their work preservation agreements as neutral employers. The majority rejects as inherently sophistical the notion that such employers can ever be termed neutral: in their eyes Hudik, for example, has actively violated an understanding for which the Union bargained collectively, and the Union's dispute is clearly with Hudik. But the Labor Board takes a more refined and realistic view of the situation. The Board insists that the Union's true complaint is with the predilection of architects, engineers and general contractors for factory-designed and -assembled goods. The Board need not consider the encroachment of modern technology, the relative advantages and disadvantages of prefabricated products, or the economic arguments which the National Woodwork Court ignored; it simply recognizes as one factor influencing its decision that the policy of using prefabricated goods, and the power to compel their use, belong to the general contractor and not to the subcontractor. Thus the Union's dispute cannot logically be solely with the subcontractor, but must instead be also with the party who dictates that prefabricated products shall be employed: the owner, the designer, the general contractor.

Majority Op., 172 U.S.App.D.C. at ___, ___, ___, ___, 521 F.2d at 894, 898 n. 33, 899 n. 34, 900. But see the statement of the National Woodwork Court that Frouge, the immediate employer of the boycotting employees in that case, would become a neutral, in spite of his voluntary violation of a valid work preservation clause, if the boycott were "tactically calculated to satisfy union objectives elsewhere." 386 U.S. at 644-45, 87 S.Ct. at 1268.

Both Justice Brennan's majority opinion and Justice Harlan's concurring memorandum in National Woodwork cautioned against judicial interpretations of the NLRA strained to comport with personal economic convictions. Justice Brennan volunteered that "economic and technological factors" militating against "will not handle" clauses "in all circumstances" should be `considered by Congress, but insisted that "Congress' policy has not yet moved to this point . . . ." 386 U.S. at 644, 87 S.Ct. at 1268. Mindful of the Court's pronouncement, I do not argue that the law should be tailored to suit protean economic conditions, but only that the structure, customs and economics of a particular trade or industry may help to define the purpose of actions taken by parties to a labor dispute.

The majority ignores a critical point which validates the Board's approach: the Board is looking not only at the locus of legal control over disputed work at the time charges are filed, nor only at the predicament of a particular employer and employee, but instead at the locus of power over design specifications in the construction industry in the New York area. Recognizing that the subcontractors who employ members of traditional craft unions lack meaningful input into decisions concerning project specifications, the Board refuses to penalize them for conflicts beyond their control, but does not hesitate to affix responsibility when they voluntarily reassign work which is subject to work preservation agreements. See cases cited at note 68 supra. The ALJ's construction of Rule IX of Hudik's collective bargaining agreement with Enterprise to apply only to work which Hudik had discretion to preserve is consonant with this approach. Absent his overview of subcontracting practices in the construction industry, the ALJ could not accurately ascertain an employer's ability to accede to union demands; without this determination, his identification of the focus and purpose of the union's economic action would be more difficult.
To hold that the Board cannot generalize from its examination of particular factual situations, that it cannot adopt a rule based on the structure and custom of construction subcontracting, is to reject the benefits of administrative experience and expertise. Like the Supreme Court in National Woodwork, we are confronted with voluminous briefs of amici submitted to demonstrate that prefabrication specifications are both ubiquitous and essential — economically and functionally — to the construction of modern buildings. While it is intuitively evident that the meticulous requirements of specialized projects may at times compel the use of prefitted, prefabricated or factory-installed equipment, we cannot extrapolate from the data the amici submit any legal or factual principle concerning work preservation boycotts. But we may note that the Board's conclusion that general contractors and not subcontractors tend to exercise control over the specification of prefabricated products is not without record support. See, e.g., cases cited at note 68 supra. And this conclusion inevitably influences the Board's decision as to whose labor policies a boycotting union is attempting to change. Cf. note 55 and accompanying text supra.

The right-to-control test would clearly be less palatable if "control" signified only immediate legal dominion or contractual power, as the majority suggests. The term includes these factors, but in addition it denotes an employer's ability to effect changes in or exert influence upon the construction policies of those parties who specify the use of prefabricated products. To this end the ALJ scrutinized not just the provisions of Hudik's contracts with Austin and Enterprise, but more importantly Hudik's practical ability to satisfy Rule IX of its collective bargaining agreement by inducing or persuading Austin to allow jobsite piping of climate control units. The ALJ concluded that Hudik, though an effective instrumentality of pressure against Austin and other New York City engineers if it refrained from bidding, could exert little influence on the use of Slant/Fin products if it participated in construction of the Norwegian Home. As a typical craft subcontractor, Hudik lacked effective control over Austin's use of prepiped units.

See, e.g., Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 890 n. 9. The majority depicts this opinion as a "smorgasbord," which it attempts to separate into three "possible explanations" of the Board's action. Instead what is offered, a la carte, is a solitary thesis: that the ALJ, in conformity with the National Woodwork mandate, applied to the circumstances of this dispute a prima facie right-to-control test, whereby an illegal secondary objective would be imputed to the Union if an examination of the surrounding circumstances revealed that the boycott was directed at a subcontractor who from the start lacked legal and practical control over the assignment of the disputed work.

Discussing the significance of economic interrelationship between the parties to a construction project, a panel of this court noted that "the factors on which the independent contractor finding rests demonstrate that one party does not exercise control over the other in significant respects." Carpet Layers Local 419 v. NLRB, 151 U.S.App.D.C. 338, 345, 467 F.2d 392, 399 (1972). In that case the inability of one contractor to control another was deemed relevant to the determination of secondary status for the purposes of section 8(b)(4). This broader sense of the term "control" is the usage and intendment of the Board in its right-to-control formulation, rather than the concept of immediate legal control which the majority assails.

The majority in its footnote 25 states that on remand the Board can examine the contractual relations of the parties to determine "not only the situation the pressured employer finds himself in but also how he came to be in that situation." This inquiry is one of the surrounding circumstances the Board is urged to consider in assessing innocence, neutrality, and primary status. The majority fails to recognize that the Board has already made precisely such a judgment, that it has determined, contrary to the views of the majority, that to deny subcontractors like Hudik the right to bid where such conflicts exist does in fact "unduly [tie] an employer's hands concerning managerial discretion." The Board has concluded that the subcontractor's hands are tied long before he bids on a general contract with provisions contrary to his work preservation agreement.
Significantly, if the only impediment to Hudik's ability to preserve work for its employees had been a contractual term, the ALJ's examination of the factual context of the labor dispute and his identification of the parties responsible for prefabrication specifications might nevertheless have led him to conclude that the Union was engaged in a primary boycott. If, for example, Austin's plans allowed Hudik the option of jobsite piping, any attempt to establish a dummy subcontracting scheme to absolve Hudik of responsibility for prefabrication specifications and to immunize it from boycotts would be frustrated at the outset by the Board's analysis. This legal fiction would not negate Hudik's practical ability to accede to its employees' bargaining demands and to meet the requirements of its collective bargaining agreement.

C. The Object of the Union's Boycott

I recognize, as have both the majority and the ALJ, that as a class, as an intermediate echelon in the construction industry, subcontractors like Hudik do exert considerable influence over the use of prefabricated materials in construction projects. In footnote 25 the majority cites the ALJ's conclusion that "[i]f prepaid [ sic] units cannot be installed * * Austin and other engineers and general contractors will not specify their purchase and use in buildings." For the majority this pressure has an apparently salutary consequence: work preservation clauses "subserve its [Union's] legitimate end of ensuring that its members [can] continue to perform in the future the work they [have] traditionally performed in the past." But by acknowledging that those work preservation boycotts against subcontractors have as their primary purpose — indeed, their only logical purpose — the bringing to bear of pressure against engineers and general contractors responsible for prefabrication specifications, the majority undercuts the analytical framework of its opinion. The majority concedes the effective neutrality of subcontractors like Hudik by admitting that the primary goal of work preservation boycotts against subcontractors is the effectuation of a change in design specifications for construction projects.

J.A. 239.

Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 896 n. 25.

The majority notes the facial validity of the ALJ's conclusion that Hudik cannot preserve work by failing to bid on jobs and secure contracts, but explains that work preservation clauses are in fact efficacious when enforced in concert, since engineers and general contractors will ultimately be forced to eschew prefabrication specifications in order to secure bids from subcontractors.

A fine distinction may exist between the secondary objects which the statute proscribes and secondary effects of primary action, which the case law tolerates. See, e.g., NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 304-05, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971); Steelworkers (Carrier) v. NLRB, 376 U.S. 492, 496, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964); Electrical Workers (General Electric) v. NLRB, 366 U.S. 667, 682, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). Because the ALJ and the majority both recognize that Enterprise's enforcement of its work preservation agreement against Hudik makes sense only if concomitant pressures are exerted on Austin, I have no difficulty concluding that those pressures are an object and not just an ancillary consequence of the Union's action. Cf. Local 636, Plumbers Pipefitters v. NLRB, 139 U.S.App.D.C. 165, 430 F.2d 906 (1970).

Clearly section 8(b)(4)(B) represents a compromise, an accommodation between the "dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." The majority would emphasize the Union interest in this balance, but explicit statutory language delimits the union's right to exert economic pressure at that point where an object of the action is forcing secondary employers to modify their labor policies and practices. The Supreme Court announced in Denver Trades that "[i]t is not necessary to find that the sole object of the strike [is] that of forcing the contractor to terminate the subcontractor's contract." This court has also embraced the view that a violation of section 8(b)(4) is established if " an objective of the union's secondary action, although not necessarily the only objective, is to force the secondary employer to cease doing business with the primary employer." And the National Woodwork decision has not altered the balance between permissible primary and prohibited secondary activity. Thus the fact that Enterprise had as one object of its boycott the enforcement of its legitimate work preservation agreement with Hudik does not exculpate the union of 8(b)(4) charges if another object of the action was the application of pressure to Austin to prevent the use of prepiped Slant/Fin units.

NLRB v. Denver Building Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951); see also National Woodwork, 386 U.S. at 626-27, 87 S.Ct. 1250; Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 894.

NLRB v. Denver Building Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).

341 U.S. at 689, 71 S.Ct. at 952 (emphasis in original). Senator Taft, sponsor of the bill which included the original section 8(b)(4), highlighted the significance of the statutory language in his supplementary analysis:

Section 8(b)(4), relating to illegal strikes and boycotts, was amended in conference by striking out the words "for the purpose of" and inserting the clause "where an object thereof is." Obviously the intent of the conferees was to close any loophole which would prevent the Board from being blocked in giving relief against such illegal activities simply because one of the purposes of such strikes might have been lawful.

93 Cong.Rec. 6859, II 1947 Leg.Hist. 1623. The Supreme Court reiterated the importance of this statement in IBEW v. NLRB, 341 U.S. 694, 700, 71 S.Ct. 954, 957, 95 L.Ed. 1299 (1951): "[I]t was sufficient that an objective of the [union action], although not necessarily the only objective" is to cause a secondary employer to cease doing business with another person. (Emphasis in original.)

Carpet Layers Local 419 v. NLRB, 151 U.S.App.D.C. 338, 345 n. 13, 467 F.2d 392, 399 n. 13 (1972) (emphasis in original).

Though the ALJ did not articulate this precise conclusion, his determination that the work preservation boycott could only achieve its purpose if it resulted in a modification of the general contractor's project specifications is a functional equivalent.

The majority skirts the effect of the inclusive language of section 8(b)(4)(B) by insisting that the provision cannot in all reason be construed to preclude enforcement of a valid collective bargaining agreement. But we have been cautioned not to expand the Union's right to strike beyond the limits prescribed by the Act. The principle that "a violation of the secondary boycott provisions cannot be justified by a contractual arrangement between the union and the neutral employer" dates to the Supreme Court's 1958 Sand Door decision. There the Court recognized that a union might be left with a valid contractual provision and with no means of enforcing it other than in a civil suit. The majority position is largely premised on the legitimacy of the Union's work preservation goal, but this court has given unequivocal support to the almost tautological view that legitimate ends may not be pursued by unlawful means. Where the valid goal of compelling compliance with a contractual provision combines with the unlawful object of pressuring neutral or secondary employers to achieve that goal, the statute will not permit a union to engage in economic action.

NLRB v. Carpenters, District Council of New Orleans, 407 F.2d 804, 806 (5th Cir. 1969); Associated General Contractors of California, Inc. v. NLRB, 514 F.2d 433 (9th Cir. 1975); ACCO Construction Equipment, Inc. v. NLRB, 511 F.2d 848 (9th Cir. 1975); NLRB v. International Board of Electrical Workers, 405 F.2d 159 (9th Cir. 1968); see also Ohio Valley Carpenters District Council v. NLRB, 339 F.2d 142, 145 (6th Cir. 1964) ("a legal contract does not immunize illegal action employed for its enforcement"); cf. Local 5, Plumbers Pipefitters v. NLRB, 116 U.S.App.D.C. 100, 104, 321 F.2d 366, 370, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963) ("regardless of the legitimacy of the end sought by the union, it cannot engage in secondary pressure to obtain it").

Local 1976, Carpenters Joiners v. NLRB, 357 U.S. 93, 105, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958).

Id. 357 U.S. at 107-08, 78 S.Ct. 1011; see Local 5, Plumbers Pipefitters v. NLRB, 116 U.S.App.D.C. 100, 104, 321 F.2d 366, 370, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963).

The standard employed by the majority is even more monolithic and unrealistic than the majority's characterization of the Board's right-to-control test. For the majority the sole determinant of employer liability to economic action is the existence of a work preservation agreement. This assumption suggests that by acquiring pacts, agreements and contractual provisions, explicit or implicit, which guarantee work to the union, the union is able to immunize itself from liability for economic actions. The equation is, contractual provision plus violation equals legitimate strike. But a realistic appraisal of the construction industry defies this simplistic analysis. Work preservation agreements for crafts are ubiquitous; if each can be enforced by economic action, regardless of secondary effects, product boycotts will be validated wholesale and unions will effectively dictate both which projects their employers can undertake and what the details and specifications of the projects will be. Thus to look solely to the existence of a work preservation agreement or understanding, without examining the particulars of its creation and reasonable scope, is to adhere to a unitary and impractical standard in the manner which the majority explicitly disapproves. At the least, the Board's formula is the product of and reflects intimate familiarity with the vertical organization of craft unions, the forces prompting their proliferation, and the complex matrix of hot cargo, union signatory and work preservation clauses surrounding construction projects, a web commonly weaved to lend all strikes and boycotts the dignity of primary action.

Local 5, Plumbers Pipefitters v. NLRB, 116 U.S.App.D.C. 100, 321 F.2d 366, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963); and see note 78 supra.

Analysis of the object of economic action taken to enforce a contractual provision would be strained if the purpose of the provision itself were not considered. The National Woodwork Court noted that union economic activity enforcing contractual provisions was prohibited where " the agreements and boycott were tactically calculated to satisfy union objectives elsewhere." The Court's awareness that admittedly valid contractual clauses may have secondary objects and that their enforcement may offend the Act's ban on secondary pressures recalls an observation of the Sand Door Court:

386 U.S. at 644-45, 87 S.Ct. 1250 (emphasis added).

The realities of coercion are not altered simply because it is said that the employer is forced to carry out a prior engagement rather than forced now to cease doing business with another. A more important consideration, and one peculiarly within the cognizance of the Board . . . is the possibility that the contractual provision itself may well not have been the result of choice on the employer's part free from the kind of coercion Congress has condemned. [T]o allow the union to invoke the provision to justify conduct that in the absence of such a provision would be a violation of the statute might give it the means to transmit to the moment of boycott, through the contract, the very pressures from which Congress has determined to relieve secondary employers.

Partly in response to Sand Door, Congress enacted section 8(e) to prohibit even the execution of "hot cargo" clauses. The proviso permitting "hot cargo" agreements for jobsite construction work, included "because of the close community of interests there," was intended to reduce periodic strikes and boycotts occasioned by the peculiar circumstances of the construction industry. Thus, although Congress and the Court have sanctioned particularly restrictive clauses in the context of jobsite construction work since the Sand Door decision, the Court is no less suspicious of clauses negotiated and enforced to serve secondary purposes, simply because they appear in construction contracts. Here the Board, with its unique perspective on labor practices and pressures, has considered the relative individual and institutional strengths of the contracting parties, the practical purposes of work preservation clauses, and the realistic effect of the Union's economic action. After consideration of all these factors the Board has determined that Enterprise's enforcement of its work preservation clause against Hudik has a substantial secondary object and secondary effects of impermissible magnitude, and has concluded that the Union's boycott violates section 8(b)(4)(B). The means by which the Board reached this result satisfy the requirements of the statute and the case law, including National Woodwork: the prima facie right-to-control test rests on the Board's considered judgment that a subcontractor's inability to affect or avoid prefabrication specifications in general contracts renders him an inappropriate and impermissible target of union economic activity. The majority has not shown an adequate basis for upsetting that decision.

The case held that while a union could not strike to enforce an employer's agreement not to handle nonunion goods, voluntary adoption and observance of such a condition was not prohibited by section 8(b)(4)(A).

386 U.S. at 634-35, 87 S.Ct. 1250.

Id. at 639, 87 S.Ct. at 1265.

Elucidating its conclusion that the proviso was prompted by the "close community of interests" on the jobsite, the National Woodwork Court cited the Third Circuit's opinion in Essex County v. NLRB, 332 F.2d 636 (1964), where the following explanation is offered:

This limited exception was granted apparently in recognition of the problems peculiar to the construction industry, particularly those resulting from sporadic work stop-pages occasioned by the traditional refusal of craft unionists to work alongside non-union men on the same project. The exemption does not extend to other agreements such as those relating to subcontracts for supplies and materials to be transported to and delivered on the construction site.

Cited at 386 U.S. 612, 639 n. 32, 87 S.Ct. 1250. See also Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975).

D. The Union's Alternative Remedies

The majority disapproves the Board's result as well as its analysis, suggesting that the NLRB is not empowered to define the arsenal of economic weapons each party to a labor dispute may use. This challenge is more plausible, for it is the basis on which the National Woodwork Court indicated it would have considered the test, had the issue been presented in that case. But since the Board's decision rests on its interpretation of section 8(b)(4) and not on an equitable attempt to fashion bargaining parity, its result satisfies the guidelines set forth by the Supreme Court in NLRB v. Insurance Agents' International Union.

At the close of its footnote 34 the majority insists that the Board is not authorized to function as an arbiter of the economic weapons respective parties may employ, in order to achieve and maintain what it deems a proper balance between the power of labor and management. This delimitation of Board authority is founded on specific language in NLRB v. Insurance Agents' Int'l Union, 361 U.S. 477, 497-98, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). But nothing the Court or the Congress has said detracts from Board authority to proscribe the use of the economic weapon of a boycott where an object of the action is the bringing to bear of secondary pressures. To the contrary, judicial decision and legislative enactment give emphatic support to that prohibition and compel the Board to enforce the statutory stricture. When a legitimate contractual provision cannot be enforced by strike without a violation of section 8(b)(4), the Board is charged with removing that weapon from the union's arsenal and requiring the use of alternatives such as arbitration or lawsuit for breach of contract.

Not before us, therefore, is the issue argued by the AFL-CIO in its brief amicus curiae, namely, whether the Board's "right-to-control doctrine — that employees can never strike against their own employer about a matter over which he lacks the legal power to grant their demand" — is an incorrect rule of law inconsistent with the Court's decision in Labor Board v. Insurance Agents' International Union, AFL-CIO, 361 U.S. 477, 497-98 [ 80 S.Ct. 419, 431-432 ( 4 L.Ed.2d 454)]. 386 U.S. at 616 n. 3, 87 S.Ct. at 1254.

361 U.S. 477, 497-98, 80 S.Ct. 419 (1960).

In Insurance Agents the Court rejected a distinction which the Board essayed, between the traditional "total strike" and concerted on-the-job harassment. The Board had concluded that the latter variety of economic action constituted a refusal to bargain collectively in violation of section 8(b)(3); the Court could find no basis for the Board's ruling within that statutory provision. Neither did the Act permit the Board's conclusion that the union's tactics — demonstrations, leafletting, and refusal to cooperate with company rules and policies — were beyond the protection of sections 7 and 8(a)(1) of the statute. Because of the "lack of relationship to the statutory standard inherent in" the Board's distinctions, the Court rejected them. Significantly, the Court observed that

when the Board moves in this area, with only § 8(b)(3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands.

The right-to-control test has a legal as well as a factual component. The standard is predicated on the Board's determination that subcontractors who lack influence over project specifications cannot realistically be the targets of craft unions' work preservation boycotts and that union pressure in such instances is more logically considered to be aimed at general contractors and engineers who require the use of prefabricated products. When the Board examines the facts surrounding a particular work preservation dispute and concludes that the true object of the union's action is to force a change in the project designs of engineers and general contractors, it denies the union's right to enforce the work preservation clause in contravention of section 8(b)(4)(B). Clearly this scheme bears a close relation to the statutory standards of the National Labor Relations Act, for by factual determinations and legal conclusions well within its province the Board identifies and prohibits economic actions with secondary objects. This role is readily distinguishable from the one the Board assumed in Insurance Agents, where the line drawn between various species of concerted activity was not founded on specific statutory language.

Moreover, the notion that certain types of contractual provisions might be enforceable by lawsuit but not by economic action did not perish with the Sand Door holding when Congress enacted section 8(e). In a remarkably lucid and unequivocal passage of legislative history the Conference Committee which submitted section 8(e) to the Congress announced that construction subcontracting agreements authorized by the proviso to section 8(e) should not be enforceable by strike or boycott:

The committee of conference does not intend that this proviso should be construed so as to change the present state of the law with respect to the validity of this specific type of agreement relating to work to be done at the site of the construction project or to remove the limitations which the present law imposes with respect to such agreements. Picketing to enforce such contracts would be illegal under the Sand Door case ( Local 1796, United Brotherhood of Carpenters v. NLRB [ 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186] (1958)). To the extent that such agreements are legal today under section 8(b)(4) of the National Labor Relations Act, as amended, the proviso would prevent such legality from being affected by section 8(e). The proviso applies only to section 8(e) and therefore leaves unaffected the law developed under section 8(b)(4). The Denver Building Trades case and the Moore Drydock cases would remain in full force and effect. The proviso is not intended to limit, change, or modify the present state of the law with respect to picketing at the site of a construction project.

In Orange Belt District Council of Painters, No. 48 v. NLRB, this court reasserted the Sand Door principle that economic actions enforcing certain valid contractual terms would violate section 8(b)(4). Speaking with reference to "union signatory" provisions, Judge Wright asserted that

[s]econdary subcontracting clauses in the construction industry are lawful, under the proviso to Section 8(e), and economic force may be used to obtain them notwithstanding Section 8(b)(4)(A) . . .. But under Section 8(b)(4)(B) such secondary clauses may be enforced only through lawsuits, and not through economic action.

117 U.S.App.D.C. 233, 328 F.2d 534 (1964).

The National Woodwork holding did not undermine this proposition; rather the Court determined that primary work preservation agreements properly enforceable under section 8(b)(4) were not prohibited by section 8(e). This determination did not preclude the conclusion, reached by the Fourth Circuit in George Koch, that work preservation agreements whose enforcement would be proscribed by section 8(b)(4) might nevertheless be valid under section 8(e), for the simple reason that a subcontractor's inability to cease using prefabricated products — his "lack of control over disputed work" — defeats a finding of "secondary pressures" absent enforcement of the clause. This case presents that precise situation: the work preservation agreement between Hudik and Enterprise does not constitute a forbidden "agreement . . . whereby [the] employer . . . agrees to cease or refrain from handling . . . any of the products of any other employer . . .," according to the precept of National Woodwork, yet the Union cannot reasonably strike to enforce the provision without exerting secondary pressures prohibited by section 8(b)(4). The majority cites to Justice Stewart's dissenting view concerning the illogic of this position, but fails to recognize both the thrust of his argument and the fact that the Court's opinion in National Woodwork did in fact allow the possibility that section 8(b)(4) sweeps wider than section 8(e).

This determination is not the logical equivalent of the proposition the majority derives from National Woodwork: that work preservation is a valid primary purpose, that work preservation clauses therefore comply with section 8(e), and that their enforcement must satisfy section 8(b)(4). The more precise holding of the case is that section 8(b)(4) and section 8(e) do not prohibit primary activity directed to work preservation primary activity is in turn defined as pressure levelled against an immediate employer because of some disagreement between boycotting employees and the boycotted employer. Where the Board determines that the operative dispute is in fact with a different employer and that the principal object of the boycott is to change that party's work policies, the work preservation shibboleth cannot render the economic action permissible under sections 8(b)(4) and 8(e).

George Koch Sons, Inc. v. NLRB, 490 F.2d 323 (4th Cir. 1973).

Cf. 386 U.S. at 638, 87 S.Ct. 1250.

Majority Op., 172 U.S.App.D.C. at ___, 521 F.2d at 901 n. 38. Justice Stewart attempted to demonstrate that any contractual provision invalid under section 8(b)(4) when enforced should similarly be invalid under section 8(e), whose "sweep" he found to be coterminous with that of section 8(b)(4). Because he recognized that enforcement of work preservation provisions might violate section 8(b)(4) — in fact, in his opinion the statute condemned all product boycotts — he believed that under section 8(e) such provisions should not be permitted in collective bargaining agreements. The National Woodwork majority would not give so broad an interpretation to section 8(e). Because the majority's opinion left open the possibility that a clause whose enforcement would constitute secondary activity illegal under section 8(b)(4) might not be condemned under section 8(e), he offered this argument, to expand interpretation of section 8(e), not to constrict section 8(b)(4).

The Court concluded that Congress meant sections 8(e) and 8(b)(4)(B) to prohibit only "secondary" objectives, and that primary work preservation clauses were valid under both provisions of the Act. A subcontractor's work preservation agreement would clearly be primary if it were given the construction the ALJ placed on Rule IX of Hudik's collective bargaining agreement with Enterprise: the employer will preserve for the union all its traditional work which he has the ability to assign. This type of provision, innocuous by the standards of section 8(e), nevertheless clearly violates section 8(b)(4) when the union strikes for the right to perform work over which the employer has no effective control.

Even if the ALJ's interpretation of Rule IX is rejected, a work preservation agreement could satisfy section 8(e) but offend section 8(b)(4) if, for example, it were a lawful primary clause enforced against a neutral employer. Cf. 386 U.S. at 632, 87 S.Ct. at 1262: "In effect Congress, in enacting § 8(b)(4)(A) of the Act [the predecessor of the present section 8(b)(4)(B)], . . . barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer when in fact the activity directed against him was carried on for its effect elsewhere." The Court noted in National Woodwork that the redrafting of the provision was intended to insure that lawful primary activity would remain legitimate under section 8(b)(4). But although the case validates the concept of primary work preservation, it does not sanction the full panoply of secondary means of enforcing work preservation clauses. Thus a clause which on its face did not constitute an "agreement . . . to cease or refrain from handling . . . any of the products of any other employer" according to the precept of National Woodwork might nevertheless by its enforcement reflect a secondary object of changing the labor policies of a neutral employer.

The majority opinion conveys a sense that a work preservation clause would be valueless if it were not enforceable by economic action, and argues that surely the Union did not bargain for a nugatory contractual right. But the ALJ has suggested the function of such clauses: they insure that an employer who in fact has an opportunity to assign work traditionally performed by members of the union representing his employees will not voluntarily order prefabricated goods in derogation of the contract term. In fact the work preservation clause may be given greater impact. If the agreement is interpreted to apply to work beyond the control of the subcontractor at the time he signs the subcontract, he might agree to pay to the union in a contract suit the value of traditional work he cannot assign to his employees. Contrary to the majority's view that the burden of offering this compensation rests on the employer, the union should pursue an appropriate adjustment, resorting to judicial enforcement when necessary. Neither the Supreme Court in Sand Door nor the Congress that enacted section 8(e) found the concept of enforcement by lawsuit to be disrespectful of employee or union interests. Without speculating over the wisdom — or necessity — of such contractual arrangements, we may note that employers gain considerable bidding flexibility by them, and that they promote resolution of work preservation disputes by an orderly legal process. By endorsing this scheme the Board does not "bail out" delinquent employers, but rather serves the legitimate end of contractually appointed work preservation without unnecessary and unlawful economic dislocations.

E. Conclusion

Reduced to its essentials, this case questions the power of the Board (1) to decide that certain kinds of valid contractual provisions cannot be enforced by economic action without prohibited secondary effects and objects, and (2) to draw the line between permissible primary and unlawful secondary activity at the point where subcontractors employing members of particular craft unions lose meaningful control over conflicts between contracts and collective bargaining agreements. Though they did not address the problem in these precise terms, the circuits which considered the right-to-control test prior to National Woodwork upheld without dissent the Board's right to treat control over the assignment of disputed work as the discriminant of primary status.

National Woodwork is an inadequate justification for completely abandoning the logic of these earlier rulings. The decision constitutes a "delineation of that degree of proof which establishes a permissible primary boycott but falls short of evidencing the interdicted secondary boycott." It asserts that a boycott tactically calculated to satisfy objectives elsewhere is prohibited secondary activity. Thus a Board ruling that under all the surrounding circumstances Enterprise could only have sought to influence the labor policies of Austin, the general contractor, and Slant/Fin, the manufacturer, would seem to satisfy National Woodwork's definition of a section 8(b)(4) violation. Yet the majority balks at the Board's decision, in part because of its analysis ignores the ALJ's thorough discussion of relevant subcontracting practices in the New York City construction industry, and in part because it cannot allow a violation of a collective bargaining agreement to go unremedied by economic action. There may be some question whether Rule IX was in fact violated; there is little doubt that a strike to enforce the Union's literal construction of its terms has as its only logical purpose the exertion of pressure on Austin and other engineers and general contractors who specify the use of prefabricated products.

George Koch Sons, Inc. v. NLRB, 490 F.2d 323, 327 (4th Cir. 1973).

386 U.S. at 644, 87 S.Ct. 1250.

The majority is not compelled to consider the fact that the result it reaches strips subcontractors of opportunities to bid on projects with prefabrication specifications, divests designers and architects of meaningful control over the details of their projects, and simultaneously increases the costs of construction projects suited to pre-prepared components. But it should not fail to recognize that the boycott it sanctions is both a "sword" and a "shield," that Hudik is simultaneously a vehicle for exerting pressure on Austin, the party responsible for the use of prepiped climate control units, and a buffer, whose contractual obligation insulates Enterprise from legal responsibility for its secondary activity. Because I read National Woodwork to prohibit "offensive" economic actions serving secondary goals, and because to deny that Austin is the true object of the Union's boycott would be disingenuous, I respectfully dissent.

Cf. National Woodwork:

It is arguable that Congress may have viewed the use of the boycott as a sword as different from labor's traditional concerns with wages, hours, and working conditions. But the boycott in the present cases was not used as a sword; it was a shield carried solely to preserve the members' jobs.

386 U.S. at 630, 87 S.Ct. at 1261.