# Limbach Company v. Sheet Metal Workers International Association, Afl-Cio and Sheet Metal Workers International Association, Local Union No. 108

> Court of Appeals for the Third Circuit · December 6, 1991 · 949 F.2d 1241

URL: https://www.frixlaw.com/law-library/cases/9482312

## Case

- **Full name:** LIMBACH COMPANY v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO and Sheet Metal Workers International Association, Local Union No. 108, Appellants
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** December 6, 1991
- **Citations:** 949 F.2d 1241; 138 L.R.R.M. (BNA) 2980; 1991 U.S. App. LEXIS 28664; 1991 WL 255230
- **Precedential status:** Published
- **Opinion:** Dissent by Sloviter
- **Judges:** Sloviter, Greenberg, Wisdom, Becker, Stapleton, Hutchinson, Scirica, Cowen, Nygaard, Alito, Roth
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482312

## How later opinions describe it (automated extraction)

- stating that the exercise of legitimate rights may be unlawful if exercised “for the purpose of applying economic coercion to achieve a prohibited secondary objective”

## Opinion text

*1264 SLOVITER, Chief Judge,
dissenting.
I respectfully dissent from the decision of the majority. The spectre of a large damage verdict, such as the more than $2.8 million awarded in this case, impermissibly tilts the level playing field designed by Congress.
Until this case, no court has held that the secondary boycott provisions of the National Labor Relations Act are applicable when a labor union disclaims further interest in representation of the workforce in an effort to protect its members from the effects of the double breasted operations of the employer. The majority reaches its conclusion by holding that Limbach is a secondary employer for purposes of the secondary boycott provisions of section 8(b)(4). I believe this is erroneous as a matter of law. I also believe that the unions’ disclaimer of further negotiation following the expiration of a section 8(f) agreement cannot reasonably be within the scope of section 8(b)(4)(ii) merely because the unions are motivated by the desire to unionize the other half of a double breasted operation. I view the majority’s conclusion that the disclaimers are tainted by the desire to unionize a nonunion company to be erroneous as a matter of law.
I.
Background of Double Breasting
This dispute, which centers on the practice of double breasting and the unions’ efforts to counteract it, can be understood only by some examination of the underlying economic and business conditions set forth in publicly available sources of information.
The construction industry is one of the few remaining highly fragmented industries in the United States. Nonetheless, there is a decided trend towards larger regional or national companies in order to diversify geographically, particularly in the Sunbelt. See Donald B. Thompson, Shakeout Was Due; Merger Mania Hits Construction Industry, Industry Week, May 17, 1982, at 88 (hereafter Thompson, Industry Week).
Unionization in the construction industry has been on the decline since the mid-1950s. See David Wallace, Non-Union Contractors Gain a Firmer Foothold, Philadelphia Business Journal, June 19, 1989, at 1. It has been reported that between 1984 and 1988 the percentage of nonunion construction done in the five-county area around Philadelphia increased from 56% to 70%, see id., and between 1980 and 1987 the percentage of nonunion construction in the Albany-Colonie, New York, area soared from about 5% to about 50%, see Tim Cavanaugh, As Non-Union Workers Grab Jobs: Construction Unions Fight to Regain Ground, Capital District Business Review, August 31, 1987, at 15. Nationwide, only about 30% of construction companies are now unionized, as compared to about 75% just ten years ago. See Gary Eisler, The Right Man at the Right Time, Oregon Business, July 1989, at 29.
The increase in nonunion work has driven, and in turn been driven by, double breasting. Double breasted operations began to pervade the construction industry in the late 1970’s after they received the Board’s imprimatur of approval. See Comment, Double-Breasted Operations In The Construction Industry: A Search For Concrete Guidelines, 6 U. Dayton L.Rev. 45-47, 50 (1981) (Dayton Comment). Double breasting permits contractors who wish to compete for nonunion jobs also to bid for those contracts that require unionized workers due to state and federal laws or the desire of the firm engaging the contractor to avoid disputes with its own employees. As this court has previously recognized “[a] contractor engaged in a double breasted operation has the best of both worlds, since it can bid through its union company when jobs require union contractors but can underbid a unionized company through its second operation on jobs that do not require union contractors.” NLRB v. Al Bryant, Inc., 711 F.2d 543, 552 (3d Cir.1983), cert. denied, 464 U.S. 1039 , 104 S.Ct. 699 , 79 L.Ed.2d 165 (1984).
Increasingly, unionized companies become double breasted operations by acquiring existing nonunion companies in the *1265 Sunbelt, where unionization is lowest, rather than by creating new subsidiaries. A management consultant has explained that it is advantageous to acquire an existing company because: “You get a firm with a labor-relations history, it’s functioning as an open shop, you get people who understand an open-shop operation, and you feel you’re a lot cleaner in the eyes of the NLRB than carving out a piece of your own organization and sending it across the street.” Thompson, Industry Week, May 17, 1982, at 88.
Although there may be some transfer of work from the unionized portion to the nonunionized portion of the same corporate enterprise, the major effect of double breasting on unionized employees is a reduction in their wages and benefits. See Bruce Hyland, Unions Lash Out at Double Breasting, Business First — Buffalo, August 5, 1985, at 1. Insofar as double breasting increases nonunion competition, unions will be pressured to give wage concessions and “givebacks” so that their employers can remain competitive in a growing nonunion environment. As one commentator has noted:
double-breasting poses a significant threat to the labor movement. From the union perspective, double-breasting improperly permits an employer to shed bargaining and contractual responsibilities while still retaining the financial benefits of ownership. Double-breasting not only diverts work to the nonunion sector, but it also puts considerable pressure on unions to grant wage and benefit concessions so that the shrinking number of union firms will remain competitive.
Stephen F. Befort, Labor Law and the Double-Breasted Employer: A Critique of the Single Employer and Alter Ego Doctrines and a Proposed Reformulation, 1987 Wis.L.Rev. 67, 69.
It is not for this court, or even the National Labor Relations Board, to align itself with one party or the other in a double breasted situation. We must recognize, however, that an employer’s ability to become a double breasted operation can substantially affect unionized workers' compensation and give the employer expanded leverage at the bargaining table. It follows that a union has a legitimate interest in protecting the working conditions of its members by using its economic weapons to discourage the employer from double breasting.
II.
Separate Employers
Under section 8(b)(4)(ii)(B), the secondary boycott section that the majority believes is applicable here, a union’s action can be viewed as a secondary boycott only if the union’s object is to “fore[e] or requir[e] any other employer to recognize or bargain with a labor organization as the representative of his employees.” 29 U.S.C. § 158 (b)(4)(ii)(B) (1988) (emphasis added). In holding that Harper and Limbach, which together constitute a double breasted operation, can be treated as separate employers for purposes of this secondary boycott provision, the majority mechanically applies the factors that courts have used in other contexts to distinguish between separate employers and a single business enterprise. However, in the only two such Third Circuit cases cited by the majority, Al Bryant, Inc., 711 F.2d 543 , and Eichleay Corp. v. International Ass’n of Bridge Workers, 944 F.2d 1047 (3d Cir.1991), we reviewed findings by the Board in the former case and the arbitrators in the latter that the double breasted companies were a single employer. Thus, on appeal, we were not faced with the question of the circumstances, if any, in which they could be viewed as separate employers for labor relations purposes.
There was no suggestion in either of those cases, or by any court cited by the majority, that a test used to determine whether a double breasted operation should be required to bargain was equally applicable to a union for the purpose of the secondary boycott provision, with its threat of large damage verdicts. It is significant that the single employer doctrine was originally adopted by the National Labor Relations Board as a basis for determining whether to aggregate the business volume *1266 of related concerns in order to meet the minimum dollar volume of business requirement imposed by the Board itself as a jurisdictional threshold. See 21 NLRB Ann.Rep. 14-15 (1956). The Board’s use of four criteria (interrelation of operations, common management, centralized control of labor relations and common ownership) as determinative of whether nominally separate business entities are an integrated enterprise, and hence a single employer for the applicable jurisdictional standards, was approvingly referred to in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 , 85 S.Ct. 876, 877 , 13 L.Ed.2d 789 (1965) (per curiam).
The same single employer criteria were thereafter applied in certain other contexts, such as determining whether a wholly-owned subsidiary was obligated to follow a labor agreement entered into by its sister company, see South Prairie Constr. Co. v. Local 627, International Union of Operating Eng’rs, 425 U.S. 800 , 96 S.Ct. 1842 , 48 L.Ed.2d 382 (1976) (per curiam), or whether a nominally separate business entity, which is a component of a single corporate enterprise, had a duty to bargain with the union, see United Tel. Workers v. NLRB, 571 F.2d 665 (D.C.Cir.), cert. denied, 439 U.S. 827 , 99 S.Ct. 101 , 58 L.Ed.2d 121 (1978). Consistent with this line of authority, we applied the traditional single employer test in Al Bryant, Inc. and Ei-chleay Corp. to determine the bargaining obligations of an employer who maintained double breasted operations.
The four-part formula used to determine the existence of a single employer in these contexts reflects the underlying purpose of the single employer doctrine, which is to treat a functionally integrated company as one employer for labor relations purposes despite the technical corporate separateness of its constituent entities. The single employer doctrine addresses the concern that an employer may be attempting to avoid the responsibilities of a labor contract or a labor-management relationship through corporate structure. See, e.g., Penntech Papers, Inc. v. NLRB, 706 F.2d 18 (1st Cir.), cert. denied, 464 U.S. 892 , 104 S.Ct. 237 , 78 L.Ed.2d 228 (1983); Local No. 627, International Union of Operating Eng’rs v. NLRB, 518 F.2d 1040 (D.C.Cir.1975), modified sub nom. South Prairie Constr. Co. v. Local No. 627, International Union of Operating Eng’rs, 425 U.S. 800 , 96 S.Ct. 1842 , 48 L.Ed.2d 382 (1976); Gerace Constr., Inc., 193 N.L.R.B. 645 (1971).
The four factors generally considered to be determinative of a single employer make sense when they are applied in the bargaining obligation context. In this case, as the majority notes, the jury’s determination of the separate employer issue was focused on whether there was centralized control over the labor relations of the two companies. In the ordinary case in which the doctrines variously referred to as “alter ego,” “successorship,” or “single employer” are invoked, the centralized control of labor relations is patently related to the ultimate issue of the bargaining obligation of the employer. In the double breasted operation, however, it would not be unusual to find decentralized control of labor relations, and thus that factor should have no bearing on the treatment of such operations for purposes of secondary boycotts.
The inquiry for purposes of determining whether there were separate employers for purposes of the secondary boycott issue is an entirely different one. Congress condemned secondary boycotts because it believed that they “unfairly ... enmesh in a proliferating dispute a person who [is] in truth a ‘neutral,’ a ‘stranger’ to that dispute who was ‘uninvolved’ in the union’s grievance against the primary employer.” See R. Gorman, Labor Law 241 (1976); National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 627 , 87 S.Ct. 1250 , 18 L.Ed.2d 357 (1967) (broad policy objective of section 8(b)(4) is “the protection of neutrals against secondary pressure”); NLRB v. Local 810, Steel, Metals, Alloys & Hardware Fabricators, 460 F.2d 1 , 5 (2d Cir.) (same), cert. denied, 409 U.S. 1041 , 93 S.Ct. 527 , 34 L.Ed.2d 491 (1972). The statutory language distinguishes between primary activity, which is protected, and secondary activity, which is not. See proviso to *1267 § 8(b)(4)(B) (nothing in the section “shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing”).
The legislative history of section 8(b)(4) “securely indicates” that Congress intended the section to prevent only pressure against neutral employers. Production Workers Union v. NLRB, 793 F.2d 323 , 328 (D.C.Cir.1986). The Conference Report accompanying the Taft-Hartley Act lists as examples of prohibited conduct only classic secondary boycotts — pressure directed against a truly neutral party. H.R.Rep. No. 510, 80th Cong., 1st Sess. 43 (1947), reprinted in I Legislative History of the Labor Management Relations Act, 1947, at 546-547, U.S.Code Cong.Serv. 1947, p. 1135. The comments on the floor of the Senate by Senator Robert Taft, a co-sponsor of the Act, further clarify Congressional intent. The senator explained:
This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees ____ [Ujnder the common law, a secondary boycott was unlawful____ [But] under the provisions of the Norris-La-guardia Act, it became impossible to stop a secondary boycott or any other kind of strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts.
93 Cong.Rec. 4198 (1947), reprinted in II Legislative History of the Labor Management Relations Act, 1947, at 1106 (emphasis added).
This unequivocal legislative history makes clear that union action is secondary, and therefore proscribed by the Act, only if it fits within the common law definition of secondary boycotts. See Production Workers Union, 793 F.2d at 329. The classic definition, often relied upon by the Supreme Court in connection with Section 8(b)(4), was written by Judge Learned Hand: “The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.” International Brotherhood of Electrical Workers v. NLRB, 181 F.2d 34, 37 (2d Cir.1950), aff'd, 341 U.S. 694 , 71 S.Ct. 954 , 95 L.Ed. 1299 (1951); see Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 388 , 89 S.Ct. 1109 , 22 L.Ed.2d 344 (1969); Local 761, International Union of Electrical, Radio & Machine Workers v. NLRB, 366 U.S. 667, 672 , 81 S.Ct. 1285, 1288 , 6 L.Ed.2d 592 (1961). The central inquiry is whether “pressure [is] tactically directed toward a neutral employer in a labor dispute not his own.” National Woodwork, 386 U.S. at 623 , 87 S.Ct. at 1257 .
Because the issue of neutrality is central to the secondary boycott inquiry, I believe that the traditional single employer test cannot be applied to a double breasted operation in this context. As the NLRB itself has recognized, “the question of neutrality ‘cannot be answered by the application of a set of verbal formulae.’ ” Teamsters, Local Union No. 560, 248 N.L.R.B. 1212 , 1214 (1980) (quoting Vulcan Materials Co. v. United Steelworkers, 430 F.2d 446, 451 (5th Cir.1970), cert. denied, 401 U.S. 963 , 91 S.Ct. 974 , 28 L.Ed.2d 247 (1971)).
A court must make a common sense determination based on the totality of the circumstances in determining whether the firm against which economic pressure is applied is a “neutral” to the dispute. See Local 810, Steel, Metals, Alloys & Hardware Fabricators, 460 F.2d at 6. Viewed realistically, the unionized portion of a double breasted operation is not a “neutral” bystander nor is it a “stranger” to a dispute concerning unionization of its nonunion counterpart. The raison d’etre of establishment of a double breasted operation is the effort of the employer to be free from union constraints in a portion of its operation. In contrast to the traditional secondary boycott where a union seeks to coerce a secondary employer merely because the secondary does business with an offending employer over which it has no control, see, e.g., NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675 , 71 *1268 S.Ct. 943 , 95 L.Ed. 1284 (1951); NLRB v. Milk Drivers & Dairy Employees Local Union No. 584, 341 F.2d 29 (2d Cir.), cert. denied, 382 U.S. 816 , 86 S.Ct. 39 , 15 L.Ed.2d 64 (1965); Chauffers, Teamsters & Helpers Local Union No. 175 v. NLRB, 294 F.2d 261 (D.C.Cir.1961) (per curiam), this is an intra-family affair.
It is undisputed and, indeed, the majority concedes that Limbach restructured its corporate form and created Jovis Constructors, Inc. so that it could acquire nonunion contractors. Prior to 1982, Limbach, Inc. competed in the construction industry in a totally unionized fashion with the benefit of section 8(f) agreements with various local unions. Had Limbach merely desired to expand its operations to Florida, it could have opened a branch office there similar to those it maintains in Boston, Pittsburgh, Columbus, Detroit, and Los Angeles. Instead, it had Jovis acquire Harper precisely because Harper was nonunion.
Once Harper was purchased, the unions directed their attention to securing recognition of the union. When Edward Carlough, the General President of the International Union, wrote to Walter Limbach in August 1983, stating that the union believed that Limbach would also enter into a labor agreement for the newly-acquired Florida entity, he was merely assuming that history would repeat itself inasmuch as Limbach had previously granted voluntary union recognition pursuant to section 8(f) for each of its divisions operating in other cities. When Limbach declined, asserting Harper’s separateness and the absence of any authority or responsibility by Limbach Company for Harper’s labor relations policies, the local unions filed grievances in the summer of 1984, pursuant to the existing labor agreements with Limbach.
Further efforts by the unions to have the existing labor agreements interpreted as applicable to Harper were stymied because the National Joint Adjustment Board (NJAB), a body composed of equal union and employer representation, deadlocked over the grievances. Only then did the unions, through their decision to disclaim representation of Limbach employees at the end of the existing section 8(f) agreements, seek to exert economic pressure on Limbach to cease proceeding as both a unionized and nonunionized operation.
The unions’ dispute with Limbach is exclusively over Limbach’s decision to operate in a double breasted manner. Insofar as the unions’ economic pressure was directed at the entity that made this decision, and the unions reasonably believed that this decision would have a negative impact on the terms and conditions of employment for the employees the unions represented, Limbach is hardly a neutral “secondary employer” in this labor dispute.
This is a far cry from the situation where a union, seeking to force recognition from the primary employer, pickets the employer’s customers or suppliers, businesses that have no stake in the labor dispute. As Justice Brennan recognized in National Woodwork, “[t]he central theme pervading [the] provisions of protection for the neutral employer confirms the assurances of those sponsoring the section that in [what is now section 8(b)(4)(B) ] Congress likewise meant to protect the employer only from union pressures designed to involve him in disputes not his own.” 386 U.S. at 625-26 , 87 S.Ct. at 1258 . He explained that notwithstanding the “broad language” of the provision that is now section 8(b)(4)(B) of the Act, judicial decisions have uniformly limited its application to “secondary situations,” and have refused to read it “to ban traditional primary strikes and picketing having an impact on neutral employers even though the activity fell within its sweeping terms.” Id. at 626-27 , 87 S.Ct. at 1259 . Justice Brennan continued, “however severe the impact of primary activity on neutral employers, it was not thereby transformed into activity with a secondary objective.” Id. at 627 , 87 S.Ct. at 1259 .
The inapplicability of the secondary boycott provisions when the target is not truly neutral is illustrated by the “ ‘ally doctrine’ cases, in which the union’s pressure was aimed toward employers performing the work of the primary employer’s striking employees.” Id. at 627 , 87 S.Ct. at 1259 . Despite the literal terms of the secondary *1269 boycott provision, it was not applied in the “ally doctrine” cases because “the union was not extending its activity to a front remote from the immediate dispute but to one intimately and indeed inextricably united to it.” Douds v. Metropolitan Federation of Architects, 75 F.Supp. 672, 677 (S.D.N.Y.1948), quoted approvingly in National Woodwork, 386 U.S. at 627 , 87 S.Ct. at 1259 .
Viewed in the light of the legislative history and the Court’s decisions limiting the application of secondary boycott provisions to those cases where a truly neutral employer is involved, it is apparent that Limbach does not fit into the concept of a true neutral. It is hardly “remote” from the instant dispute. Instead, Limbach and Harper operate together as part of a single coherent business strategy designed to take advantage of both the unionized and nonunionized segments of the market for construction.
As the majority recognizes, the separate boards of directors of Limbach and Jovis were non-operational “except to fulfill legal requirements, and the presidents of both companies reported directly to Walter Lim-bach.” (949 F.2d at 1260). Walter Lim-bach remained at the apex of Limbach Constructors Inc. after the reorganization. I find it surprising that the majority fails to acknowledge that Walter Limbach testified at trial that “central management and ... business executive management” were located in Limbach Constructors Inc., which was the parent of Limbach Co. and Harper. See App. at 1105-06. Limbach Co. sent its own management personnel to Harper to serve as the executive management of Harper. Furthermore, John Fern, one of Lim-bach’s Vice Presidents, was sent to Jovis to serve as its President and was given official labor relations responsibilities for Jov-is. Notwithstanding the technical separation, there was extensive integration of Limbach Constructors Inc.’s operations. Limbach and Harper utilized the same accounting and payroll services, personnel services, legal assistance, market research, advertising and sales services, mechanical engineering services, estimating services, and administrative services including procurement and assignment of automobiles, janitorial records and maintenance of company records.
Even if the two halves of the double breasted operation had decentralized labor relations, this could not serve to mask the interest of each in maintaining the status quo as a double breasted operation. Therefore, neither could be viewed as a neutral with respect to disputes concerning the unionization of the other.
Neither the decision in Gottfried v. Sheet Metal Workers’ Local No. 80, 876 F.2d 1245 , 1247 (6th Cir.1989), nor the Board’s decision in Local Union No. 80, 305 N.L.R.B. No. 36 (Sept. 30, 1991), provides any persuasive reason why the halves of the double breasted operation should be viewed as neutral separate employers for secondary boycott purposes. In Gottfried, the court merely decided that the argument that they were separate employers was not frivolous, the standard by which the Regional Director’s petition for injunctive relief should be judged. As for the Board’s decision in Local Union No. 80, while we ordinarily owe the Board deference in its legal analysis of the NLRA, in this case its decision does not represent the kind of reasoned policy analysis and expertise which are the basis for deference. Because that decision considered the single employer issue only in cursory fashion and did not specifically hold that the traditional single employer test should strictly apply in cases like the present one, we need not defer to the Board on this issue. Nothing in the opinion gives rise to a rule on this issue to which we owe deference. In any event, we need only defer to Board interpretations of the NLRA that are “rational and consistent with the Act.” See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 , 107 S.Ct. 2225, 2235 , 96 L.Ed.2d 22 (1987). In light of the clear Congressional intent to proscribe as a secondary boycott only union conduct directed against employers that are truly neutral to the labor dispute, I believe that the Board’s mechanical application of the four factor single employer test in this context is clear *1270 ly inconsistent with the intent of the NLRA.
In summary, the decision of the majority that Harper and Limbach, two halves of a double breasted operation, are separate employers for purposes of the secondary boycott provision of the NLRA represents an unwarranted extension of the secondary boycott provisions to what is essentially a family dispute. I believe that such an extension deviates from the policy enunciated by the Supreme Court to limit the secondary boycott provisions to those cases where the activity is truly secondary. Here, as a matter of law, it is clearly not.
III.
Disclaimer as Coercion
There is another, and independent, reason to reverse the decision of the district court. The secondary boycott provision of section 8(b)(4)(ii) covers only union conduct that acts “to threaten, coerce or restrain” for certain prohibited objectives. It is implausible to view a union’s disclaimer of interest in negotiating a new section 8(f) contract as a threat, coercion, or restraint.
As the Supreme Court has repeatedly stated, the statutory words “threaten, coerce or restrain” are “ ‘nonspecific, indeed vague,’ ” and should therefore be interpreted “with caution” and not be given a “ ‘broad sweep.’ ” Edward J. DeBartolo, Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 578 , 108 S.Ct. 1392, 1399 , 99 L.Ed.2d 645 (1988) (quoting NLRB v. Drivers Local Union No. 639,, 362 U.S. 274, 290 , 80 S.Ct. 706, 715 , 4 L.Ed.2d 710 (1960)). Accordingly, the Supreme Court has excluded from the definition of coercion certain union activities that are fundamentally peaceful in nature and are dissimilar from secondary striking and picketing, which the legislative history indicates were the activities that the secondary boycott provision was intended to proscribe. Id. 485 U.S. at 574 , 108 S.Ct. at 1397 ; S.Rep. No. 187 on S. 1555/86th Cong., 1st Sess. 70 (1959), reprinted in 1 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 475 (1959), 1959 U.S.Code Cong. & Admin.News, 2318, 2383.
Thus, in DeBartolo, the Supreme Court held that the handbilling of customers of a secondary employer was not “coercion” within the meaning of section 8(b)(4) because “[tjhere was no violence, picketing, or patrolling and only an attempt to persuade customers not to shop in the mall.” Id. at 578 , 108 S.Ct. at 1399 . The Court explained that the mere fact that the union’s activity had “some economic impact on the neutral” was insufficient to support a finding of “coercion.” Id. at 579 , 108 S.Ct. at 1399 . Similarly, in NLRB v. Fruit Packers, 377 U.S. 58, 63 , 84 S.Ct. 1063, 1066 , 12 L.Ed.2d 129 (1964), the Supreme Court held that consumer picketing at a secondary establishment airbed solely at persuading customers ^nbt to purchase a specific product was/not “coercion.” Because a disclaimei/is merely a refusal to negotiate, this case is distinguishable from Sheet Metal Workers Local Union No. 91 v. NLRB, 905 F.2d 417 (D.C.Cir.1990), cited by the majority, where a union refused to follow the terms of an existing section 8(f) agreement unless the employer agreed to an/illegal “hot cargo” clause.
It is significant that in this case, the disclaimer occurred at the conclusion of a section 8(f) agreement. Congress recognized that the mobility of the construction industry’s work force and the highly cyclical nature of construction work made the “majority representative” model of unionization present in other industries impracticable in the construction industry. See International Ass’n of Bridge Workers v. NLRB, 843 F.2d 770, 772-73 (3d Cir.), cert. denied, 488 U.S. 889 , 109 S.Ct. 222 , 102 L.Ed.2d 213 (1988). As a result, in 1959, Congress added section 8(f) to the NLRA, which legalized pre-hire agreements 1 entered into between unions and employers in the construction industry.
*1271 In contrast to labor agreements entered into pursuant to section 9(a), under which the majority status of the union is irrebutt-ably presumed to continue for a reasonable period of time, see Brooks v. NLRB, 348 U.S. 96 , 75 S.Ct. 176 , 99 L.Ed. 125 (1954); Toltec Metals, Inc v. NLRB, 490 F.2d 1122 (3d Cir.1974), thereby imposing on the employer a continuing duty to bargain in good faith with the representative chosen or designated by his employees, the same obligation does not apply when a section 8(f) agreement terminates. When a work force is unionized pursuant to a § 8(f) agreement, no “irrebuttable presumption” of union majority attaches. Therefore, the Board has held that when a section 8(f) agreement expires, the employer may freely terminate the bargaining relationship, even if its reason for refusing to bargain with the union is to deprive its employees of the benefits of union representation. See Yellowstone Plumbing, Inc., 286 N.L.R.B. 993 , 994 (1987).
In International Ass’n of Bridge Workers, we upheld the Board’s interpretation in John Deklewa & Sons, 282 N.L.R.B. 1375 (1987), that “§ 8(f) pre-hire agreements [are] only enforceable during the term of the agreement and [can] not be converted into traditional collective bargaining agreements with lingering rights and obligations absent an election and certification.” 843 F.2d at 775 .
Because bargaining relationships are bilateral, not unilateral, and similar rules must and usually do govern both parties to the relationship, it would be anomalous to permit employers to walk away from their section 8(f) agreements when they expire but not give unions the same right. The majority purports to apply an evenhanded approach, and states that “both the union and the employer are free to repudiate the agreement.” 949 F.2d at 1254 (emphasis added). However, the result of its interpretation is far from evenhanded, because it holds that a union cannot decline to bargain for a new section 8(f) agreement if its objective is unionizing the second half of a double breasted operation. The Board’s similar holding in Local Union No. 80 is no more persuasive than is the majority’s, particularly in light of the Board’s earlier holding that an employer has no duty to bargain after the expiration of a section 8(f) agreement, even if the employer was motivated by antiunion animus and unlawfully encouraged decertification of the union. See Yellowstone, 286 N.L.R.B. at 993-994.
Furthermore, the Board’s opinion in Local Union No. 80 is internally inconsistent. While holding that the disclaimer of a section 8(f) bargaining relationship was an illegal secondary boycott, the Board nevertheless refused to order the union to bargain on the ground that the union had no further bargaining obligation upon the expiration of the section 8(f) agreement. The Board reasoned:
[T]o issue an affirmative bargaining order would violate the principle laid down in [John Deklewa & Sons, 282 NLRB 1375 , enf. sub. nom. Intern. Ass’n. Bridge, etc., Local 3 v. NLRB, 843 F.2d 770 (3rd Cir.1988), cert. denied, 488 U.S. 889 , 109 S.Ct. 222 , 102 L.Ed.2d 213 (1988) ] that an 8(f) union has no further bargaining obligation after the expiration of the contract; while requiring the [union] to implement contractual terms they have not agreed to ... is a remedy precluded by the Supreme Court’s holding in H.K. Porter v. NLRB, 397 U.S. 99 , 90 S.Ct. 821 , 25 L.Ed.2d 146 (1970).
Local Union No. 80, Slip Op. at 13. It simply defies common sense to hold that a union has no obligation to bargain for a new section 8(f) agreement and yet hold that its disclaimer of interest in doing so can violate the statute.
Furthermore, if the unions had no duty to bargain for a new section 8(f) agreement, as the Board’s opinion clearly states, the jury could not have reasonably found damages as a result of the breach of that duty. The Board’s opinion makes clear the error of the district court in failing to instruct the jury, as requested by the unions, that “in the construction industry ... at the expiration of the agreement, neither the employer nor the union is obligated to enter into a successor agreement.” App. at 3437-3438. Thus I believe that the dam *1272 age verdict in this case is inconsistent with the established legal principle, reaffirmed by the Board in Local Union No. 80, that there is no legal requirement that a construction industry union enter into a successor section 8(f) collective bargaining agreement once the prior section 8(f) contract has expired.
IV.
The draconian effect of the majority’s holding cannot be underestimated. Unlike the situation of the usual unfair labor practice, where the remedy is an order of the Board requiring bargaining, a finding of a secondary boycott leaves the union open to extensive damages, as were awarded in this case. If upheld, this will leave unions defenseless in their efforts to combat the increasing use of double breasted operations while employers will be free to enter into such arrangements without any comparable deterrence.
The general approach of Congress in the labor relations area has been to allow each party to use economic and bargaining strategies to exert pressure upon the other. See Senate Committee on Education & Labor, S.Rep. No. 573, 74th Cong., 1st Sess. 2 (1935) (“[disputes about wages, hours of work, and other working conditions should continue to be resolved by the play of competitive forces”). By applying the secondary boycott provision to what is essentially an economic struggle between an employer and its employees, the majority has deprived the unions of their traditional weapons and thereby shifted, perhaps irreparably, the balance between the parties in the construction industry.
For the foregoing reasons, I would reverse the order of the district court denying the unions’ motion for judgment notwithstanding the verdict on the issue of secondary boycott liability.
. A pre-hire agreement is defined as a contract that is entered into between an employer and a union before the employees to be covered under the contract have been hired. See Robert’s Dictionary of Industrial Relations 562 (3d ed.1986).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482312. Public record. Not legal advice.