J. F. Hoff Electric Company v. National Labor Relations Board, Local Union 323, International Brotherhood of Electrical Workers, Intervenor

WILKEY, Circuit Judge,

dissenting:

The majority purports to decide this ease on a principle “far narrower” than the General Electric work-relatedness standard, and “fully consistent” with the Supreme Court’s standard in Denver Building for common situs construction picketing. 1 To judge by the majority’s legal reasoning in the abstract, one might agree with this characterization and conclude that this decision follows from precedent and marks nothing very significant. But when one looks at the decision in light of the actual nature of independent contractor relationships on a construction site, it becomes apparent that the practical effect of the majority’s holding makes serious inroads against the Denver Building rule, and worse, that any logical extension of the majority’s reasoning to future common situs picketing cases would leave virtually nothing of Denver Building at all.

The difficulty in this case arises from the tension between the Supreme Court decisions in General Electric and Denver Building. The General Electric decision affirms the right of unions to picket gates used by customers and suppliers of an industrial plant, on grounds that this constitutes traditional primary picketing activity. 2 Denver Building, on the other hand, protects independent contractors at common situs construction projects from picketing by unions with grievances against other contractors working at the same construction site. 3 Our problem in the present case is that Consolidated Electric Supply Co. (Consolidated) appears to be both a common situs independent contractor and a supplier of Hoff Electric Co. (Hoff), the primary employer against whom the union bears its grievance. Consolidated seems to be an independent contractor within the Denver Building rule, because it has a separate arrangement to provide materials to the owner of the construction project on which Hoff works, an arrangement contracted for before Hoff was selected as the electrical subcontractor. On the other hand, Consolidated seems to be a supplier of Hoff within the General Electric rule, since the lighting fixtures it provides are installed by Hoff’s electricians. As a result of this tension, it is a difficult question whether a union with a grievance against Hoff should be able to picket a separate gate used by Consolidated. I believe that an answer to this question does follow logically from an analysis of Supreme Court precedents in this area; it is an answer contrary to the majority’s decision.

*1278 The majority resolved the above-described tension by applying a “common sense” definition of supplier: “if in fact and practice, Consolidated was delivering supplies which in the normal course of its business Hoff used and installed, Consolidated was a ‘supplier’ of Hoff . 4 The majority relies for this approach, as did the National Labor Relations Board (NLRB), on the Lin-beck Construction Corp. case in the Fifth Circuit, which held that “any gate used to deliver materials essential to the primary employer’s normal operations is subject to lawful picketing.” 5 Under this approach it is easy to argue that Consolidated is a supplier of Hoff, that the General Electric rule permits picketing against Consolidated’s delivery as traditional primary strike activity, and that Consolidated’s claim of independent contractor status under Denver Building is unavailing.

This approach poses two major problems, however, which come to light only upon a consideration of the customary relationships of contractors at a common situs construction project. First, far from being a rare or exceptional case, Consolidated’s relationship with Hoff -providing materials to the owner which are essential to Hoff’s normal operation and are used and installed by Hoff-/s highly typical of the way business is done on a construction project. Owners could prefer to order various items themselves for many reasons-perhaps to cut costs, perhaps to ensure that the items suit their personal tastes. In such instances an owner would quite likely contract with an electrical, plumbing, carpentry, or other type of firm to install or assemble the items. Any subcontractor hired to perform a skilled service will work with many items provided to the site by other contractors. The work on any construction site is so interrelated that many independent contractors can be called “suppliers” of other independent contractors.

To see the extent of this interrelationship-and the extent to which the majority would cut into the Denver Building rule -it is instructive to look at an illustration. An earlier construction site picketing case decided by the NLRB set forth the contract arrangements for a typical housing construction project. The NLRB decision lists the following contracts made by the general contractor American Modulars Corp. for the purchase of materials:

1. Crystal Park Lumber Co., Inc.

American purchases decks, trusses, roof sheeting, exterior doors, exterior and interior wood trim, and stairs.

2. United States Steel Homes Division

American purchases exterior and interior wall panels and soffit.

3. J. P. Loomis Co.

American purchases concrete block and concrete window sills.

4. Akron Sales Co.

American purchases brick.

5. Ornamental Iron Works

American purchases steel I-beams. 6

The NLRB decision went on to list the general contractor’s contracts with other employers to work with the above materials:

1. W. B. Miller Construction Co.

a. Foundation-concrete block walls

b. Exterior walls-brick

c. Window sills

2. Sondles

Erects the housing shell using:

a. Steel I-beams

b. Decks

c. Pre-fab walls-wall panels

d. Trusses

e. Roof sheeting

f. Exterior doors and trim

3. Alside

Places soffit under eaves. 7

*1279 In this illustration each of the second group of subcontractors used materials provided not by themselves or their direct suppliers, but rather by the general contractor through the contracts listed in the first group. Any one of the first group of subcontractors could be termed a “supplier” of the second group, yet each is clearly an independent contractor in conventional usage. There is no indication that this proliferation of independent contractors to supply the general contractor is an attempt to evade potential union picketing; it is simply the natural result when a general contractor hires firms with special skills, but finds it more economical or convenient to procure the materials independently for them to use.

Of course some subcontractors will have materials delivered to them by their suppliers in addition to or instead of using materials provided to the construction site by independent contractors. Such direct suppliers may of course be picketed under the reasoning of Denver Building, since they are not independent of the primary employer to whom they deliver. But the present case is far different: Consolidated is clearly independent of Hoff. Consolidated sold electrical fixtures directly to the owner; Hoff had no relationship with Consolidated and no direct relationship even with the owner, as Hoff was hired by the general contractor, and was hired for the purpose of installing the fixtures but not providing them. 8

The effect of the majority’s opinion is to take such independent contractors out of the Denver Building rule whenever they can be characterized as “suppliers,” and to allow picketing of any service subcontractors to spread to the independent contractors who provide materials that they use. This aspect of the decision alone creates a major exception to Denver Building, but the effect of the majority’s opinion does not end here. Under the General Electric decision, “customers” are just as vulnerable to this treatment as “suppliers,” which leads us to the second major problem posed by the majority opinion.

General Electric affirms the right of unions to picket not only suppliers entering the primary employer’s site of work, but also customers. 9 Because in the present case the union did not claim the right to picket customers oí Hoff, this second major problem did not enter directly into the majority’s deliberation. But the reasoning of the majority’s opinion leaves no logical ground for refusing to allow common situs picketing of consumers as well as suppliers of common situs contractors who become primary objects of picketing. Once again we see the same tension with Denver Building, since many independent contractors are, in a “common sense” view, customers of other independent contractors.

On a common situs construction project the extent of common sense customer relationships is just as broad as supplier relationships. The customer of Hoff or any other skilled service subcontractor is the person who receives the services; this would be either the general contractor or the owner. In the case of subcontractors who provide materials to the general contractor, their customers include not only the general contractor but also the other independent subcontractors that use, install, or assemble the materials.

If a union is allowed to picket all those who by a common sense view fall into the General Electric categories of supplier and customer, the union can vastly expand the targets of its picketing. We can trace the effects of the majority’s reasoning in terms of our earlier illustration. The majority’s holding as to suppliers allows a primary labor dispute with a skilled service contractor in the second group of contracts to spread to the “supplier” contractors in the *1280 first group; in similar fashion the majority’s reasoning when applied logically to the customer side will allow a primary dispute against a subcontractor in the first group to spread to its customers in the second group.

It is difficult to imagine any relationship between independent contractors that is not either supplier or customer. Any subcontractor who performs skilled services has “suppliers” in those other contractors who provide the materials on which the skilled service contractor performs his work; and he has “customers” in those general contractors who contracted for his services. Any subcontractor who provides materials likewise has “customers” in those subcontractors that use and install the materials, and in those general contractors that ordered and accepted delivery of the materials.

This web of supplier and customer relationships among contractors is precisely what is to be expected, since contractors are admittedly closely interrelated on any typical construction site. Since they are engaged in a common enterprise, the work of any one contractor is related to and often essential for the work of many others. As a result, any judicial approach that rejects the “formalistic” 10 and “artificial” 11 distinctions among construction contractors and adopts instead “common sense” and a “realistic analysis” 12 of the relationships among them, will inevitably conclude, as the majority does here, that the contractors are not truly independent and that one cannot insulate itself from picketing against another. What this approach leaves of Denver Building is hard to see.

The majority’s approach results from the application of the General Electric standard for picketing of suppliers and customers to the situation of a construction project. The natural question to ask, then, is whether General Electric and Denver Building are simply inconsistent and irreconcilable, so that one decision must necessarily overrule or strictly limit the other. I think they are not, for reasons I will describe.

It is certainly true that the standards of the two cases conflict on the surface. General Electric allows picketing of suppliers, customers, and independent contractors performing tasks related to the normal operations of an industrial plant, even when they enter the plant through a separate reserved gate. 13 Denver Building deals with construction contractors whose tasks are clearly related to the normal operations of each other, and who under a realistic analysis are de facto suppliers and customers of each other in the typical case; yet Denver Building allows picketing only against the primary employer with whom the union has its grievance. If the union pickets secondary employers-other contractors entering the site-then Denver Building supports the conclusion that an object of the picketing is to induce the secondary employers to cease doing business with the primary, a violation of section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act. 14

In terms of the argument that secondary employers at a construction site are closely interrelated with the primary employer-contractor, Denver Building does not deny the fact of interrelationship, but concludes that this fact does not eliminate their status *1281 as independent contractors: “The business relationship of independent contractors is too well established in law to be overridden without clear language doing so.” 15 It is this acceptance of customary independent contractor relationships, despite the close interrelationship of the contractors, that sets the Denver Building standard at odds with the General Electric standard.

But whether one of the cases must necessarily overrule the other is a different question. The second of the cases in time, General Electric, did not question the vitality of Denver Building in any way; its only mention of Denver Building was an approving citation on a collateral point. 16 Faced with this situation, we must give effect to both precedents, so long as there is a reasonable way to reconcile them. And in fact there is a way, because each of these cases applies logically to a different category of picketing situations: Denver Building pertains to common situs construction projects, while General Electric pertains to industrial plants of primary employers.

Lest this appear an arbitrary distinction, it is important to note the real differences between the two situations. General Electric protects the traditional right of unions to conduct picketing at a primary employer’s industrial plant to influence employees, customers, and suppliers of that primary employer not to do business with him during the strike. In this context it does seem “artificial,” as a kind of subterfuge, for a struck industrial plant to contract out all its normal operations and have independent contractors enter through separate gates to carry on the operations of the firm unimpeded by the picketers. 17 This means of operation appears artificial and devious because the customary manner of operation for an industrial plant is to carry out its on-site operations with its own employees, not by employing outside contractors.

On a common situs construction project, on the other hand, the customary practice is entirely different. Owners normally do perform construction operations by hiring outside contractors. General contractors typically engage subcontractors to perform skilled services and provide materials. It is precisely because these contractor relationships are customary and not anti-strike subterfuges that the Denver Building Court could say that they are “too well established in the law to be overridden without clear language doing so.” 18

Moreover, the common situs construction situation, because it customarily involves many independent employers, requires a delicate balancing of the congressional objective of “shielding unoffending employers and others from pressures in controversies not their own.” 19 The unoffending employer’s interest appears especially strong in “ambulatory situs” cases such as con *1282 struction projects. 20 In the industrial site context this interest is less deserving of protection, since contractors who enter a struck plant site to perform normal operations of the plant are in a sense making the plant’s controversy their own: customarily they would not be engaged in such work but for the need to circumvent the strike. In the construction site context, by contrast, an independent contractor such as Consolidated typically enters its contract with the owner for reasons unrelated to any actual or expected strike.

We thus have ample reason to apply General Electric and Denver Building each in its own separate sphere, the first for industrial plant picketing, the second for common situs construction picketing. When the cases are reconciled in this manner-and it is very difficult to see any other way to reconcile them-the logical conclusion is that the General Electric standard simply does not apply to construction site picketing cases. Both the Sixth Circuit and the Ninth Circuit have arrived at this conclusion, refusing to apply General Electric to common situs construction projects. 21 In addition, a Fifth Circuit case has stated that the General Electric work-relatedness standard “does not apply to employers at a common construction situs,” 22 though that decision contains ambiguities on this point which will be discussed below.

Apparently mindful of the weight of this authority, the majority states that it is applying a “far narrower concept” than the General Electric standard, a concept “fully consistent with Denver Building.” 23 But throughout its opinion the majority relies on reasoning drawn directly from General Electric. 24 At the same time the majority declares: “We can thus find in Denver Building no abiding principle to control this case.” 25 The fact is that the majority has decided a construction common situs case according to the standard of General Electric rather than Denver Building.

The majority’s statement that its standard in this case is far narrower than that of General Electric is open to serious question. It may appear at first that the General Electric standard of “work-relatedness” is broader than the NLRB’s standard, approved here by the majority, of “essential to the primary employer’s normal operations.” 26 But in fact when one applies the majority’s “common sense” notion of de facto suppliers to the typical construction site picketing case, there is no substantial difference in result between the two standards. At one point in its opinion the General Electric Court phrased its standard in terms of work “necessary to the normal operations,” 27 thus leaving no vestige of difference in the majority’s “essential to normal operations” standard.

It is true that the “essential to normal operations” language has been endorsed by the Fifth Circuit in Linbeck Construction Corp. v. NLRB, 28 the same case in which the Fifth Circuit stated that General Electric does not apply in the construction site context. In arriving at the “essential to normal operations” standard, however, the Lin-beck court drew its analysis primarily from General Electric and a second industrial *1283 plant picketing case. 29 If General Electric is truly not applicable to construction site cases, then we should not now apply a standard based on the reasoning of General Electric and other industrial plant cases. 30 To do so, as we have shown, would be contrary to the Denver Building precedent.

To appreciate the tendency of the majority’s reasoning to undermine if not overrule Denver Building, it is instructive to note the close parallel between the majority’s reasoning and that of Justice Douglas in his Denver Building dissent. As we have seen, the majority substitutes a common sense, realistic assessment of contractor interrelationships in place of a formalistic distinction among contractors based on factors such as legal ownership. 31 Justice Douglas apparently recognized that this line of reasoning ran directly contrary to the Denver Building decision, for he argued in dissent that the Court had made the right to strike “dependent on fortuitous business arrangements that have no significance so far as the evils of the secondary boycott are concerned,” 32 and that “[t]he presence of a subcontractor does not alter one whit the realities of the situation.” 33 It goes without saying that to follow this line of reasoning consistently is to overrule Denver Building. 34

There is one further important argument against nibbling away at the Denver Building rule and its respect for customary independent contractor relationships at construction sites. Ever since the Supreme Court’s decision in 1951, Denver Building has been the object of almost annual attempts by Congress to overrule it legislatively. Courts normally hesitate to reverse a statutory interpretation, since Congress can change it by legislation if it wishes. This reluctance is most fully warranted when Congress deliberates at length whether to overrule legislatively and decides not to.

Common situs picketing has received ample legislative attention recently. Opponents of Denver Building have pressed the argument that “the realities of the situation” show that construction contractors are *1284 closely interrelated, and that “fortuitous business arrangements” among contractors should not insulate them from picketing. 35 A common situs picketing bill failed in 1975 for lack of congressional override of a presidential veto. 36 In 1977 a bill containing similar provisions failed to win a majority in the House. 37 The latter bill was intended expressly to apply the reasoning of General Electric to common situs construction picketing. 38 I see no reason for this court now to hand to the losers the prize that eluded them in Congress.

The significance of this case might appear less if it were not the third in a series of heretofore unsuccessful attempts by this court to broaden the permissible scope of secondary boycott activity. Because of the fine line between primary and secondary strike activity, all the rules prohibiting secondary boycotts are susceptible to being swallowed by superficially plausible exceptions. In two other controversial areas of secondary boycott activity, this court has shown an inclination to cut back on the protections against secondary boycotts. Two of our en banc decisions of recent years have unsuccessfully attempted to expand the permissible scope of secondary picketing of struck products sold by neutral businesses, 39 and to broaden the extent to which work preservation agreements may justify the exertion of secondary boycott pressures. 40 In both cases a sharply divided en banc Court of Appeals decision was reversed by the Supreme Court. 41 The majority’s decision in the present case represents, I believe, yet one more attempt to expand an exception to the secondary boycott prohibition to the point that the exception overshadows the rule.

The proper disposition of this case is to hold that the National Labor Relations Board applied an improper standard-a standard contrary to Denver Building-when it decided this construction site picketing case according to the reasoning and standards of General Electric. The case should be remanded to the Board for consideration under the terms of Denver Building and the Moore Dry Dock case, rather than General Electric. Under the proper standard, the issue for decision would be whether the picketing of the gate used by Consolidated was a secondary boycott effort to induce either Consolidated, or the owner of the project, or the general contractor, to cease doing business with Hoff. 42

Because the majority affirms a Board order decided according to an improper standard, I must dissent.

. Maj. op. at 1272.

. Local 761, Int’l Union of Elec. Workers v. NLRB (General Electric), 366 U.S. 667, 680-81 , 81 S.Ct. 1285, 1293 , 6 L.Ed.2d 592 (1961). See maj. op. at 1269.

. NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 687-90 , 71 S.Ct. 943, 950-952 , 95 L.Ed. 1284 (1951). See maj. op. at 1270. Denver Building did not involve the use of separate gates for the primary employer and other contractors, as have most subsequent cases in this area. When the construction site has separate gates, the picketing must meet the standards of the Moore Dry Dock case, Sailors’ Union of the Pacific, 92 N.L.R.B. 547 , 549 (1950), set forth in maj. op. at 1268. As applied in construction industry cases, the Moore Dry Dock standards require that the union picket only the gate used by the contractor with whom the union has its primary dispute, and not picket separate gates used by other independent contractors. See, e. g., Carpenters Local 470 v. NLRB, 564 F.2d 1360, 1362 (9th Cir. 1977); Markwell & Hartz, Inc. v. NLRB, 387 F.2d 79 , 81-83 (5th Cir. 1967), cert. denied, 391 U.S. 914 , 88 S.Ct. 1808 , 20 L.Ed.2d 653 (1968). A failure to meet the standards of Moore Dry Dock through picketing of gates used only by secondary employers, indicates an intent by the union to exert unlawful secondary pressures. See Carpenters Local 470 v. NLRB, 564 F.2d 1360, 1362-63 (9th Cir. 1977).

. Maj. op. at 1273.

. Linbeck Constr. Corp. v. NLRB, 550 F.2d 311, 318 (5th Cir. 1977) (affirming 219 N.L.R.B. 997 (1975)). See maj. op. at 1267-1268.

. United Bhd. of Carpenters, 203 N.L.R.B. 1112 , 1115 (1973).

. Id.

. Local 323, IBEW, No. 12-CC-1006 (NLRB 3 Apr. 1979), reprinted in Appendix at 2, 13-16 (decision of ALJ).

. See Local 761, Int’l Union of Elec. Workers v. NLRB (General Electric), 366 U.S. 667, 680 , 81 S.Ct. 1285, 1293 , 6 L.Ed.2d 592 (1961).

. Maj. op. at 1271.

. Id. at 1272.

. Id. at 1272-1273.

. See Local 761, Int’l Union of Elec. Workers v. NLRB (General Electric), 366 U.S. 667, 680-81 , 81 S.Ct. 1285, 1293 , 6 L.Ed.2d 592 (1961).

. 29 U.S.C. § 158 (b)(4)(i), (ii)(B) (1976). In separate-gate cases this conclusion is drawn from the combined effect of Denver Building and Moore Dry Dock, see note 3 supra. The Denver Building case respects the independent nature of the different contractors engaged in a construction project. See NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 690 , 71 S.Ct. 943, 952 , 95 L.Ed. 1284 (1951). The Moore Dry Dock case prevents the picketing of independent secondary employers at gates not used by the primary employer, because such picketing is not limited in place and time to the activities of the primary employer. Sailors’ Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 , 549 (1950). See Carpenters Local 470 v. NLRB, 564 F.2d 1360, 1362-63 (9th Cir. 1977).

. NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 690-91 , 71 S.Ct. 943, 952 , 95 L.Ed. 1284 (1951).

. Local 761, Int’l Union of Elec. Workers v. NLRB (General Electric), 366 U.S. 667, 672 , 81 S.Ct. 1285, 1288 , 6 L.Ed.2d 592 (1961).

. If this were allowed, the strikers would be restricted to picketing the separate gate reserved for the firm’s regular employees, none of whom would enter the gate because not only are they on strike, but they have been replaced in their jobs by independent contractors. The right to strike and to picket, in this context, could become almost meaningless. Hence the holding of General Electric. The related “ally doctrine” aims to prevent much the same potential evisceration of the right to strike. See e. g., NLRB v. Business Machine Mechanics Conference Board Local 459, 228 F.2d 553 (2d Cir. 1955), cert. denied, 351 U.S. 962 , 76 S.Ct. 1025 , 100 L.Ed. 1483 (1956).

. 341 U.S. at 690 , 71 S.Ct. at 952 . The majority refuses to respect these customary legal relationships among construction contractors when it states that “a rule which would require the Union to divine the legal complexities of the contractual relationships on a construction site, at the risk of committing an unfair labor practice, would be unfair and unrealistic.” Maj. op. at 1272. Surely it is no more difficult for a union to discern legal relationships among contractors than to discern intended uses of materials and other de facto supplier and customer relationships as the majority’s standard would require.

. NLRB v. Denver Bldg. Trades Council, 341 U.S. at 692 , 71 S.Ct. at 953 .

. See Local 761, Int'l Union of Elec. Workers v. NLRB (General Electric), 366 U.S. 667, 677 , 81 S.Ct. 1285, 1291 , 6 L.Ed.2d 592 (1961).

. Carpenters Local 470 v. NLRB, 564 F.2d 1360, 1362 (9th Cir. 1977); NLRB v. Nashville Bldg. Trades Council, 383 F.2d 562 , 565-66 (6th Cir. 1967).

. Linbeck Constr. Corp. v. NLRB, 550 F.2d 311, 316 (5th Cir. 1977) (citing Markwell & Hartz, Inc. v. NLRB, 387 F.2d 79 (5th Cir. 1967), cert. denied, 391 U.S. 914 , 88 S.Ct. 1808 , 20 L.Ed.2d 653 (1968)).

. Maj. op. at 1272.

. See maj. op. at 1268, 1269, 1271, 1272. See also id. at 1269-1270 (relying on another industrial plant picketing case, United Steelworkers v. NLRB (Carrier Corp.), 376 U.S. 492 , 84 S.Ct. 899 , 11 L.Ed.2d 863 (1964)).

. Maj. op. at 1271.

. Id. at 1268.

. 366 U.S. at 682 , 81 S.Ct. at 1294 .

. 550 F.2d 311 (5th Cir. 1977).

. See Linbeck Constr. Corp. v. NLRB, 550 F.2d at 317-18 .

. Nevertheless, the result in Linbeck, as opposed to the reasoning and “essential” standard, is not necessarily contrary to the analysis presented here. The Linbeck case involved a transfer of contractual ownership of goods normally supplied to the subcontractor who was the primary object of the union’s grievance. Contracts were revised so that the goods were delivered by contract to the general contractor rather than the subcontractor; this change took place after the general contractor heard rumors of impending strike activity and only four days before the picketing began. See id at 318. Moreover, the goods were raw materials of the sort customarily ordered by the subcontractor and not the general contractor in such situations.

A sham or subterfuge contractor relationship might fall outside the rationale of Denver Building, discussed above, which was intended to respect customary contractor relationships on a construction site. In the present case there is no need to decide whether a “subterfuge” exception might be appropriate in construction picketing cases, since the contractual relationships on the site where Hoff worked were established well in advance of any picketing threat, even in advance of the selection of Hoff as subcontractor.

. See maj. op. at 1271-1272.

. NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 693 , 71 S.Ct. 943, 953 , 95 L.Ed. 1284 (1951) (Douglas, J., dissenting).

. Id.

. Despite the broad implications of the majority’s reasoning in this case, which would severely limit Denver Building, the majority does suggest a much narrower basis on which its opinion might stand. The majority mentions that Consolidated delivered supplies only for Hoff, not for the use of other subcontractors. While one might design a new exception to Denver Building along these lines, there is no convincing principled reason to do so. Customarily contractors often deliver materials to a construction site for the use of only one skilled service contractor, as can be seen in the illustration on pp. 1268-1269 supra: lumber for carpenters, bricks for masons, etc. If typical construction arrangements often have independent contractors deliver such materials that only one other contractor can use, there is no more reason to deny the independence of this relationship than of any other independent contractor relationship on the site.

. See S. Rep. No. 438, 94th Cong., 1st Sess. 10-11 (1975) (quoting NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 693 , 71 S.Ct. 943, 953 , 95 L.Ed. 1284 (1951) (Douglas, J., dissenting)).

. H.R. 5900. See 121 Cong. Rec. 42,015 (1975).

. H.R. 4250. See Cong. Rec. H2517 (daily ed. 23 March 1977).

. H.Rep.No. 96, 95th Cong., 1st Sess. 6 (1977).

. NLRB v. Retail Store Employees Union (Safeco), 627 F.2d 1133 , (D.C.Cir. 1979) (en banc), rev’d, 447 U.S. 607 , 100 S.Ct. 2372 , 65 L.Ed.2d 377 (U.S. 1980).

. Enterprise Ass’n of Steam Pipefitters v. NLRB, 521 F.2d 885 (D.C.Cir. 1975) (en banc), rev’d, 429 U.S. 507 , 97 S.Ct. 891, 51 L.Ed.2d 1 (1977).

. In a third case along similar lines, involving “hot cargo” and work preservation agreements, a divided panel decision of this court was affirmed this year by a 5-4 Supreme Court decision. See NLRB v. International Longshoremen’s Ass’n, 447 U.S. 490, 100 S.Ct. 2305 , 65 L.Ed.2d 289 , (1980) (affirming 613 F.2d 890 (D.C.Cir. 1979)).

. See 29 U.S.C. § 158 (b)(4) (1976).