# Pacific Northwest Chapter of Associated Builders & Contractors, Inc. v. National Labor Relations Board > Court of Appeals for the Ninth Circuit · April 17, 1981 · 654 F.2d 1301 URL: https://www.frixlaw.com/law-library/cases/8913703 ## Case - **Full name:** PACIFIC NORTHWEST CHAPTER OF the ASSOCIATED BUILDERS & CONTRACTORS, INC. v. NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701, Intervenor OREGON-COLUMBIA CHAPTER, the Associated General Contractors of America, Inc. v. NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701, Intervenor INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701 v. NATIONAL LABOR RELATIONS BOARD, Respondent WOELKE & ROMERO FRAMING, INC. v. NATIONAL LABOR RELATIONS BOARD v. CARPENTERS LOCAL NO. 944 and Carpenters Local No. 235, Intervenors NATIONAL LABOR RELATIONS BOARD v. CARPENTERS LOCAL NO. 944, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, and Carpenters Local No. 235, United Brotherhood of Carpenters & Joiners of America, AFL-CIO - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** April 17, 1981 - **Citations:** 654 F.2d 1301 - **Precedential status:** Published - **Opinion:** Dissent by Farris - **Judges:** Anderson, Browning, Canby, Choy, Farris, Fletcher, Nelson, Norris, Schroeder, Sneed, Wallace - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8913703 ## Opinion text FARRIS, Circuit Judge, with whom CHOY and J. BLAINE ANDERSON, Circuit Judges, join, dissenting: I join Judge Sneed’s dissent in all respects and add some comments regarding the scope of the construction industry proviso. The collective bargaining agreements here prohibit signatory general contractors from subcontracting any work covered by the agreement at any construction site to nonsignatory contractors. These agreements violate subsection 8(e) of the National Labor Relations Act, 29 U.S.C. § 158 (e) (1976), unless they are permitted under the construction industry proviso, which allows “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 . . .. ” Id. The precise issue here is whether that proviso legalizes agreements that limit subcontracting at sites where the employer has no employees represented by the union. The majority holds that it does. I disagree. In Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616 , 95 S.Ct. 1830 , 44 L.Ed.2d 418 (1975), the Supreme Court concluded that the construction industry proviso did not authorize a construction industry employer and a union not representing its employees to agree to limit the employer’s right to subcontract. Finding no congres *1328 sional purpose in extending the proviso to legalize agreements between employers and “stranger” unions, the Court narrowly construed the proviso to limit its scope “to agreements in the context of collective-bargaining relationships and . . . possibly to common-situs relationships on particular jobsites as well.” Id. at 633 , 95 S.Ct. at 1840 .. Here, the three judge panel concluded that the proviso was designed to deal with the special problem of jobsite friction in the construction industry. It read the proviso to allow a collective bargaining agreement to restrict an employer’s subcontracting at the jobsite where it employs the union’s members. The majority asserts that another purpose — maintenance of contract standards in the industry — requires that the proviso be read to allow restrictions on the use of nonsignatory subcontractors at any jobsite. See also Donald Shriver, Inc. v. NLRB, 635 F.2d 859 , 879-82 & n.29 (D.C. Cir. 1980). I agree that a congressional purpose in. addition to reduction of jobsite friction may require a broader scope for the proviso, but I do not agree that maintenance of contract standards in the industry is such a purpose. The Court in Connell read the proviso to allow restraints in the context of collective bargaining relationships. That does not mean that when a relationship exists any restraint can be imposed; rather, the relationship only has a bearing on the legality of the restraint when the relationship and the restraint are related. It is not sufficient that the restraint serves the interest of workers in the industry generally. It must serve the interests of the workers represented by the union in the course of their employment by the employer. The only way the all-jobsite restraints here can serve the interests of these workers is by preventing loss of work due to subcontracting. This problem, however, is resolved by a common, primary restraint; the union standards clause. Such clauses effectively insulate workers from falling industry standards by removing the incentive to subcontract. At the same time they avoid many of the evils inherent in the restraints here. In my view the construction industry proviso is not concerned with maintenance of contract standards. See generally Archibald Cox, Derek Bok & Robert Gorman, Cases and Materials on Labor Law 892-95 (8th ed. 1977) (while garment industry proviso was concerned with maintenance of industry standards, construction industry proviso was concerned with jobsite friction). The proviso should not be read to permit restraints which extend to jobsites where no unit employees are present and which are therefore unrelated to reduction of jobsite friction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8913703. Public record. Not legal advice.