The opinion
DANAHER, Circuit Judge
(concurring) :
I quite agree with most of Judge McGowan’s cogent discussion and certainly with his conclusion that the complaint should be dismissed, but I reach that result on a different basis. It seems to me the Board is simply saying it has changed its position with respect to its decision in Colson and Stevens Construction Co., 137 NLRB 1650 . At the same time, the Board here has come out exactly where we find it as if the Colson and Stevens order had never been set aside. The Board rests upon its finding “that the picketing had as one of its objects” that of coercion of Centlivre Apartments to refrain from doing business with one of the subcontractors, Kimes and Kocks.
In other words, the Board was here holding that the petitioner might lawfully try to procure a promise in writing that the contractor would cease doing business with the subcontractor, but that it is unlawful for the petitioner to have the intention of enforcing that promise. The Board thus would skirt the decisions cited by Judge McGowan which rejected the Board’s Colson and Stevens doctrine.
The case was tried on the theory then held by the Board that the picketing was illegal if its object was to secure a “hot cargo” agreement even in the construction industry. When that premise disappeared, so did the complaint.
I think the Board should have faced up to the merits. In that approach the Board would have been required to grant the petitioner’s motion for reconsideration on the alternative ground, and thus to have dismissed the complaint.