Petition — Woelke & Romero Framing, Inc. v. National Labor Relations Board
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Office-Supreme Court, U.S.
80-1798 FILED
IN THE APR %9 1981
Supreme Court of the United States:;."
October Term, 1980.
WOELKE & ROMERO FRAMING, INC.,
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD; CARPENTERS LOCAL
No. 944, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO; and CARPENTERS LO-
CAL No. 235, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT.
JOHN W. PRAGER, JR.,
4000 MacArthur Boulevard,
Suite 900,
Newport Beach, Calif. 92660,
(714) 752-6100,
Attorney for Petitioner.
Of Counsel:
DWIGHT L. ARMSTRONG,
Gary W. ROBINSON,
Niet O. ANDRUS,
MUSICK, PEELER & GARRETT,
4000 MacArthur Boulevard,
Suite 900,
Newport Beach, Calif. 92660.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
i
QUESTIONS PRESENTED.*
1. Does the existence of a collective-bargaining relation-
ship between a construction union and a construction
employer invariably legalize a secondary-boycott
agreement inherent in a union-signatory subcontractor
clause under the construction industry proviso to Sec-
tion 8(e) of the National Labor Relations Act, 29
U.S.C. 158(e)?
2. Did the Court of Appeals misinterpret this Court’s de-
cision in Connell Construction Co., Inc. v. Plumbers
& Steamfitters, Local Union 100, 421 U.S. 616 (1975),
by holding that the construction industry proviso to
Section 8(e) of the Act privileges broad union-signatory
subcontracting provisions which are not designed to
eliminate jobsite friction between union and non-union
workers at a particular construction jobsite?
3. Does Section 8(b)(4)(A) of the National Labor Rela-
tions Act, 29 U.S.C. §158(b)(4)(A), prohibit a union
from engaging in ‘‘top-down’’ organizing by striking
or picketing to force a contractor to execute an agree-
ment containing a union-signatory subcontractor clause
otherwise protected by the construction indy stry proviso
to Section 8(e) of the Act?
*The qpetions presented in this case are similar and related to those
in Donald Schriver, Inc., et al. v. N.L.R.B., numbered in this Court
as Case No. 80-1257, in which a petition for writ of certiorari has been
filed.
ii
LIST OF PARTIES TO PROCEEDING BELOW.
Pursuant to Rule 21.1(b) of the Rules of the Supreme
Court of the United States, a list of the parties in the pro-
ceeding below is submitted:
The caption of the within matter contains a listing of the
names of all parties in the proceeding below in this matter
which was numbered Case No. 78-3468 in the U. S. Court
of Appeals for the Ninth Circuit.
However, the within matter was consolidated with other
cases for purposes of oral argument and decision below.
_ See Case Nos. 78-3469, 78-3487, 78-3619, and 79-7011.
The parties to those other cases in the proceeding below
were:
1. Pacific Northwest Chapter of the Associated
Builders & Contractors, Inc.;
2. Oregon-Columbia Chapter, the Associated Gen-
eral Contractors of America, Inc.;
3. Internationa) Union of Operating Engineers,
Local No. 701; and
4. National Labor Relations Board.
ili
TABLE OF CONTENTS
Page
Ao. soos oentscasensboronsvsehs i
List of Parties to Proceeding Below .................000+ ii
Statutory Provisions Involved ...............scececeseseeees 2
Opinions and Orders Below ..............cscececececeeeeees 3
Jurisdiction of the Supreme Court ..............0eseeeeeee 3
NOE OE I ID She ctvc csc cecseeksscnccsscccoscvcccstes 3
TNE osc 00h svc .cvutuasphvvssuebecesvabneces 3
PEED BIE wici sdb eis ccnnecdstgusncccsadescseuswens 5
The Decisions of the Board and Court of Appeals
MND: aushatenouknsyébeniascosecesincdnensdpusrsnebeatates 7
Reasons for Granting the Writ ..............cceceeeeeeeeees 10
IEEE op ibuccnaeeddbisivosecabetocsncadbanseutcectevin 10
PE si vi dcvetecowincicds seen csvecsenevancasicsosscesses 11
The Decision Below Conflicts With This Court’s
Decision in Connell Construction Co., Inc. v.
Plumbers & Steamfitters, Local Union 100, 421
Site MP TREE bdikveecncidessshcortankivinaudaveces 11
The Decision Below Presents Important Questions,
Previously Unanswered by This Court, Con-
cerning the Extent of the Validity Under Section
8(e) of the Act of Agreements to Conduct Sec-
ondary Boycotts in the Construction Industry .. 17
The Extent of a Construction Union’s Right to En-
gage in Top-Down Organizing by Picketing Em-
ployers to Obtain Union-Signatory Subcontract-
ing Agreements Has Not Been and Should Be
Determined by This Court ..............cecceeeeees 21
I ie os sthuouscdennieaen 25
iv
Index to Appendices Page
Appendix A. Opinion ..............cceeeeeenees App. p. 1
PGE CI Vadarencvrecseccscccctsascsaswantesss 53
71
Appendix C. Decision and Order ...............000000
Vv
TABLE OF AUTHORITIES
Cases Page
Associated General Contractors of California, Inc. v.
N.L.R.B., 514 F.2d 433 (9th Cir. 1975) ............. 13
Bangor Building Trades Council, AFL-CIO (Davison
Construction Company, Inc.), 123 N.L.R.B. 484
(1959), enf’d, 278 F.2d 287 (Ist Cir. 1960) ......... 24
Bricklayers, Masons etc., (Selby-Battersby & Com-
DRM SAS Peckatbets LETS (IDSD) svccscesesssccccccces 24
Colorado Building & Construction Trades Council
(Utilities Services Engineering, Inc.), 239 N.L.R.B.
REE Vesa ronbiaktebioena dupecenccspesdbscniectaness 6, 8
Connell Construction Co., Inc. v. Plumbers & Steam-
fitters, Local Union 100, 421 U.S. 616
EEE Nidors cencdabducateesekecseysbs i; 7, 3:2, 20, 22,42
pa dvekbs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24
Construction, Production and Maintenance Laborers
Union, Local 383 (Colson and Stevens Construction
Co., Inc.), 137 N.L.R.B. 1650 (1962), enf. denied,
323 F.2d 422 (9th Cir. 1963) ...............cce ees 21, 22
Drivers, Salesmen, etc., Local 695 v. N.L.R.B., 361
ee CNet NG EPID vp cccacccccsscccwssevcsssecces 13
Essex County and Vicinity District Council of Carpen-
ters and Millrights v. N.L.R.B., 332 F.2d 636 (3rd
ea ed, ac ces acncccadceeebqundests 13, 22
Houston Insulation Contractors Ass’n v. N.L.R.B., 386
I Es, ana dsc scanebseesbuseckenenweces 18
International Union of Operating Engineers, Local 542
(York County Bridge), 216 N.L.R.B. 408 (1979),
enforced, 532 F.2d 902 (3rd Cir. 1976) ............... 13
Local 47, Teamsters (T.C. Bateson Construction Co.,
and Texas Industries), 112 N.L.R.B. 923 (1955),
enf’d, 234 F.2d 296 (Sth Cir. 1956) ..............000. 24
vi
Page
Local 1976, United Brotherhood of Carpenters etc., et
al. v. N.L.R.B. (Sand Door and Plywood Company),
MEE PROG). cdcabhdnns cn ccoeWcccacectenes oie 17, 18
Los Angeles Building and Construction Trades Council;
and Local Union No. 1497, United Brotherhood of
Carpenters & Joiners of America (Donald Schriver,
Inc. and Sullivan-Kelly & Associates), 239 N.L.R.B.
ds Ve di tei Lacexsgecsccuschessceshisigipwesess 6
National Woodwork Manufacturers Ass’n v. N.L.R.B.,
nt EA ias sie actedesasivsieeasvensesteoces 18
N.L.R.B. v. Denver Building & Construction Trades
CS OL, Gee PACA DOL) coccccdesndsscccsquccecess 15
N.L.R.B. v. Iron Workers, Local 103 (Higdon Con-
tracting), 434 U.S. 335 (1978) ..........scsceccesseees 23
N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270 (1973) . 16
Northeastern Indiana Building and Construction Trades
Council (Centrilivre Village Apartments), 148
EE HEMET dink) Sc caaseosubeehnoacneanscroceneys 22
Orange Belt District Council of Painters No. 48 v.
N.L.R.B., 328 F.2d 534 (D.C. Cir. 1964) .......... 22
Pacific Northwest Chapter of the Associated Builders
and Contractors, Inc., et al. v. N.L.R.B., et al., 609
PEE EERO Gals BEE). cocccccesscesecstnsurwenest 6, 8
Miscellaneous
II, Legislative History of Labor-Management Reporting
and Disclosure Act of 1959, p. 1433 ............. 17, 18
II, Legislative History of Labor-Management Reporting
and Disclosure Act of 1959, pp. 1577,
PURO ne otetaiddekcddcccdehs cos doccrebsivcdcébevecs 13, 23, 24
Public Law 95-486—92 Statutes at Large, Secs. 1629,
MONEE Gacbb dep epiuavenatUlecdc hanced ecossvsecevdbdgebrienedas 7
vii
Rules Page
Federal Rules of Appellate Procedure, Rule 15(a) .....
Local Rules of the United States Court of Appeals for
SD Pees COUN, TRUS ZS onc cei scccgcecccsasdossecnsaens
Rules of the Supreme Court of the United States, Rule
PRM desabde bissededshetUbajebibsesisescnaesboentonensnse
Statutes
National Labor Relations Act, Sec. 8(b)(4) (29 U.S.C.
es san vedbababenad bs
National Labor Relations Act, Sec. 8(b)(4)(A) (29
U.S.C. §158(b)(4)(A)) ...........5. as Pe | eo Py cB
National Labor Relations Act, Sec. 8(b)(7) (29 U.S.C.
NS PYLE ERIN RMT IE SFR CO
National Labor Relations Act, Sec. 8(e) (29 U.S.C.
§158(e)) . i, 2, 5, 7, 8, 11, 12, 14, 17, 18, 20, 21,
National Labor Relations Act, Sec. 8(b)(4)(i) (29
in IEEE cence sessdenccsnvakwaévasscnenes 2,
National Labor Relations Act, Sec. 8(b)(4)(ii)(A) (29
mens, RUCROIUALDD © ccccccevestcsenscsioveseees 2,
National Labor Relations Act, Sec. 10(f) (29 U.S.C.
ea icide a labs connbivcndanshouseatnoonee 3,
United States Code, Title 28, Sec. 1254(1) .......,.....
United States Code, Title 29, Sec. 160(e) ...............
Treatises
Gorman, R., Basic Test on Labor Law (West, 1976)
Se RROE a chackipeninFitoeveraducssvesRvercessecoesas 15,
St. Antoine, ‘‘Connell: Antitrust Law At The Expense
of Labor Law,’* 62 Va.L.Rev., pp. 605, 619 n. 74
SON CUAEAR ET Movie ccc cscseishededes comesanavexssnee
16
Be videce
IN THE
Supreme Court of the United States
October Term, 1980.
WOELKE & ROMERO FRAMING, INC.,
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD; CARPENTERS LOCAL
No. 944, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO; and CARPENTERS LO.
CAL No. 235, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT.
Petitioner, Woelke & Romero Framing, Inc., respectfully
prays that a Writ of Certiorari issue to review the en banc
judgment of the U.S. Court of Appeals for the Ninth Circuit
which was entered in this proceeding on April 17, 1981.'
'The within matter was nurmbered Case No. 78-3468 in the Court of
A s, and was consolidated for argument and decision with certain
related cases. The National Labor Relations Board was the Respon-
dent below, and the Unions were Intervenors below.
an
Statutory Provisions Involved.
United States Code, Title 29:
§158(b)(4)(i) and (ii)(A)
“It shall be an unfair labor practice for a labor orga-
nization or its agents — (4)(i) to engage in, or to induce
or encourage any individual employed by any person
engaged in commerce or in an industry affecting com-
merce to engage in, a strike or a refusal in the course
of his employment to use, manufacture, process, trans-
port, or otherwise handle or work on any gvods, ar-
ticles, materials, or commodities or to perform any
services; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is:
(A) forcing or requiring any employer or self-
employed person to join any labor or employer
organization or to enter into any agreement which
is prohibited by seciion 8(e);”’
$158 (e)
“It shall be an unfair labor practice for any labor or-
ganization and any employer to enter into any contract
or agreement, express or implied, whereby such em-
ployer 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 unenforceable and void: Provided, That nothing
in this subsection (e) shall apply to an agreement be-
tween a labor organization and an employer in the
construction industry relating to the contracting or sub-
contracting of work to be done at the site of the con-
struction, alteration, painting, or repair of a building,
structure, or other work... .””
a
Opinions and Orders Below.
The judgment and opinion of the limited en banc panel
of the U.S. Court of Appeals for the Ninth Circuit, which
was entered in this matter on April 17, 1981, is styled,
Pacific Northwest Chapter of the Associated Builders &
Contractors, Inc., etc., et al. v. National Labor Relations
Board, et al., and is not yet officially reported. It appears
as Appendix A.
The prior judgment and opinion of a three-judge panel
of the U.S. Court of Appeals for the Ninth Circuit which
was issued on December 26, 1979, is officially reported at
609 F.2d 1341 (9th Cir. 1979), and appears as Appendix
B.
The Decision and Order of the National Labor Relations
Board (‘‘Board’’), which was reviewed by the U.S. Court
of Appeals for the Ninth Circuit pursuant io a Petition for
Review filed under 29 U.S.C. §160(f), is officially reported
at 239 N.L.R.B. 241 (1978), and appears as Appendix C.
Jurisdiction of the Supreme Court.
The judgment and opinion of the limited en banc panel
of the U.S. Court of Appeals for the Ninth Circuit was
entered on April 17, 1981. No petition for rehearing, or for
further hearing before the full Court, has been filed.
The U.S. Supreme Court’s jurisdiction is invoked pur-
suant to 28 U.S.C. §1254(1). See, 29 U.S.C. §§160(f) and
160(e).
Statement of the Case.
Statement of Facts.
Woelke & Romero Framing, Inc. (‘‘Woelke & Rom-
ero’’), is a framing subcontractor in the buiiding and con-
struction industry in Southern California and, insofar as
relevant to the time period herein involved, had construction
subcontracts with various general contractors and builders
i.
calling for Woelke & Romero to perform construction fram-
ing work.
Woelke & Romero had had a collective-bargaining agree-
ment with the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, its various district councils and local
unions, including Carpenters Local 944 and Carpenters Lo-
cal 235 (‘‘Unions’’) involved in this case, since at least
1974. The most recent collective-bargaining agreement was
due to expire June 15, 1977.
Between June 3 and August 4, 1977, the Unions and
Woelke & Romero engaged in collective-bargaining for a
successor agreement. On August 4, 1977, the Unions and
Woelke & Romero reached an impasse in bargaining over
various proposals, including the Unions’ proposal dealing
with the subcontracting of work which contained the fol-
lowing ‘‘subcontractor clauses’’:
**103.2 The Contractor agrees that neither he nor any
of his subcontractors on the jobsite will subcontract
any work to be done at the site of construction, alter-
ation, painting or repair of a building, structure or other
work (including quarries, rock, sand and gravel plants,
established on or adjacent to the jobsite to process or
supply materials for the convenience of the Contractor
for jobsite use) except to a person, firm or corporation,
party to an appropriate, current labor agreement with
the appropriate Union, or subordinate body signatory
to this Agreement.”’
**103.5 All work performed by the Contractors or sub-
contractors and all services rendered for the Contractors
or subcontractors, as herein defined, shall be rendered
in accordance with each and all of the terms and pro-
visions hereof.
**103.6 If the Contractor or subcontractors shall sub-
contract jobsite work covered under the jurisdiction of
the United Brotherhood of Carpenters and Joiners of
America, including the furnishing and installation of
or oe
material, performance of labor, and the cperation of
equipment, provision shall be made in written contract
for the observance and compliance by his subcontrac-
tors with the full terms of this Agreement.’’ (Pet. App.
C, pp. 78-80)’
Since August 4, 1977, no further collective-bargaining
sessions have been held. In support of the Unions’ demand
for the above contract provisions, the Unions picketed at
the construction jobsites at which Woelke & Romero was
working. As a result of the picketing, individuals employed
by various other subcontractors engaged in work stoppages
and refusals to perform services for their respective
employers.’
Proceedings Below.
On August 11, 1977, Woelke & Romero filed an unfair
labor practice charge alleging that the Unions had violated
Section 8(b)(4)(i) and (ii)(A) of the National Labor Relations
Act (‘*Act’’), 29 U.S.C. $158(b)(4)(i) and (ii)(A), by pick-
eting at various jobsites to force Woelke & Romero to enter
into a collective-bargaining agreement containing the union-
signatory subcontracting restrictions which it believed were
violative of Section 8(e), 29 U.S.C. 158(e), of the Act. On
September 23, 1977, the Board’s General Counsel issued
a Complaint on the charge, and the matter was later pre-
sented to the Board on a Stipulation of Facts. Oral argument
in this and certain other related proceedings was held before
the Board in Washington, D.C., on February 23, 1978. On
November 13, 1978, the Board issued its Decision and Order
finding and concluded that the sought clauses were not un-
The Appendix herein will be cited to as ‘‘Pet. followed
a reference to the appropriate Penmaacat carcolbe 7
*The Unions sought additional clauses which are set forth in
Appendix (Pet. App. C, pp. 78-80)
co a
lawful under the Act, and that the Unions had not violated
the Act by picketing to obtain them.‘
Pursuant to Rule 15(a) of the Federal Rules of Appellate
Procedure and Section 10(f) of the Act, 29 U.S.C. §160(f),
on November 14, 1978, Petitioner filed a Petition for Re-
view of the Board's Decision and Order with the U.S. Court
of Appeals for the Ninth Circuit.
On December 26, 1979, a three-judge panel of the Court
of Appeals entered its consolidated judgment and opinion
in this and the other related cases, Pacific Northwest Chapter
of the Associated Builders and Contractors, Inc., et al. v.
N.L.R.B., et al., 609 F.2d 1341 (9th Cir, 1979), The three-
judge panel reversed the Board in material part and sustained
Woelke & Romero's Petition for Review. On January 30,
1980, the Board and the Unions filed petitions for rehearing,
and rehearing en banc.
On August 19, 1980, the Court of Appeals issued an
Order granting the petition for rehearing en banc and ordered
“When this matter was pending before the Board in 1978, it was
consolidated with several related proceedings. Because of their impor-
tance in the application of the Act, the Board took the unusual step of
hearing 7 hours of oral ment with respect to this and the related
proceedings, and decided all of them together. See, Colorado Building
& Construction Trades Council (Utilities Services Engineering, Inc.),
239 N.L.R.B, 253 (1978), Los Angas Building and Construction
Trades Council; and Local Union No, 1497, United Brotherhood of
C rs & Joiners of America (Donald Schriver, Inc, and Sullivan-
Kelly & Associates), 239 N.L.R.B, 264 (1978); and /nternational Union
of rating Engineers, Local No, 701, AFL-CIO; Oregon-Columbia
hapter, The Associated General Contractors of America, Inc. (Pacific
Northwest Chapter of the Associated Builders & Contractors, Inc.),
239 N.L.R.B. 274 (1978). The Schriver case was thereafter
to the U.S. Court of Appeals for the District of Columbia Circuit, and
the Woelke & Romero and Pacific Northwest cases were appealed to
the U.S. Court of Appeals for the Ninth Circuit.
The Board's view of this Court's decision in Connell Construction
Co., Inc. v. Plumbers & Steamfitters, Love! Union 100, 421 U.S, 616
(1975) was stated in its Woelke & Romero decision,
This a ee questions and issues closely related to those in
Donald Schriver, Inc, et al. v. N.L.R.B. now e% 3 a petition for
writ of certiorari before this Court in Case No, 80-1257,
ok
the matter reheard before a limited en banc panel of the
Court of Appeals as provided by Public Law 95-486, 92
Stat. 1629, 1633 and Rule 25 of the local rules of the U.S.
Court of Appeals for the Ninth Circuit.
On October 16, 1980, oral argument before a limited en
banc Court was held in San Francisco, California, On April
17, 1981, the en banc Court issued its judgment and opinion.
The Decisions of the Board and Court of Appeals Below.
The Board concluded that the subject contract clauses
were union-signatory subcontractors clauses which obligate
the employer not to do business with another unless the
latter is signatory to the union's agreement.’ The Board
construed them to be secondary in thrust and within the
scope of Section 8(e) of the Act because the clauses are
addressed to the labor relations policies of other employers
vis-a-vis their employees. The Board further found that the
clauses were privileged by the construction industry proviso
to Section 8(e) of the Act since they were sought within the
context of the Unions’ collective-bargaining relationship
with Woelke & Romero, The ®oard also found that the
Unions, therefore, did not violate Section 8(b)(4)(A) of the
Act by striking and picketing Woelke & Romero to force
its agreement to the clauses.
The Board's decision that the subcontracting provisions
were privileged by the proviso construed this Court's de-
cision in Connell Construction Co., Inc. v. Plumbers &
*The expression *‘union- pslgnatory subcontractors clauses"’ refers to
the type of restrictive subcontracting agreement which obligates the
chosen subcontractor to have the very same agreement with a particular
union and to be bound by all of its provisions. The ‘‘secondary’’ thrust
of such comes from the irement that all provisions be
acknow by the subcontractor, including those dealing with union-
tion, hiring from the union's hiring hall, and provisions —
the subcontractor's emp to observe the requirement to
particular union as a tion of continued employment u ‘the
union-security provisions of the contract.
Steamfitters, Local Union 100, 421 U.S. 616 (1975), as
follows:
**. , , the construction industry proviso to Section 8(e)
permits subcontracting clauses such as those here in
the context of a collective-bargaining relationship, and
possibly even without such a relationship if the clauses
are aimed at avoiding the Denver Building Trades prob-
lem. . .’’ 239 N.L.R.B. at 250 (Pet. App. C, pp. 97-
98)
The Board considered, but rejected, the contention that
this Court's decision in Connell required that the shelter of
the construction industry proviso to Section 8(e) be limited
to only those secondary jobsite subcontracting agreements
which are both (1) contained in the context of a collective-
bargaining relationship, and (2) operational at times and
sites at which the employer has employees represented by
the union, and do not require bargaining relationships with
a particular union. 239 N.L.R.B. at 248. In effect, the
Board held that the mere existence of the collective-
bargaining relationship between the Unions and Woelke
& Romero, invariably and without more, was sufficient to
give the clauses legal shelter under the proviso.
The Court of Appeals initially disagreed with the Board.
Speaking for a unanimous three-judge panel of the Court
of Appeals, Judge Sneed held the clauses outside the proviso
because they were broader than the proviso’s purpose and
operational even at sites when and where no union workers
were employed:
**We hold that the construction industry proviso ex-
tends shelter only when a collective bargaining rela-
tionship exists and even then only when the employer
or his subcontractor has employees who are members
of the signatory union at work at some time at the
jobsite at which the employer wishes to engage a non-
union subcontractor.’’ Pacific Northwest Chapter of
the Associated Builders & Contractors, Inc., et al. v.
Te
N.L.R.B., et al., 609 F.2d 1341, 1347 (9th Cir. 1979).
(Pet. App. B, p. 62)
However, that decision was later vacated, and a limited
en banc panel of the Court of Appeals split 7-4, and sided
with the Board and the Unions. (Pet. App. A, p. 1) The
majority of the en banc Court, in an opinion written by
Judge Canby, concluded that the proviso shelters union-
signatory subcontractor clauses without regard to the pres-
ence or absence of union workers at the jobsite, so long as
such clauses are contained in or sought as part of a collec-
tive-bargaining relationship. Further, the en banc majority
concluded that unions may strike employers to force the
execution of such clauses:
**We find that provisions in a collective-bargaining
agreement forbidding the signatory employer to sub-
contract work at a construction site to firms that do not
have a contract with the « gnatory union are within
§8(e) of the National Labor Relations Act, but are
protected by the construction industry proviso to that
section. They need not be limited to jobsites presenting
the possibility of conflict between union and non-union
workers. We also find that unions may picket or strike
to induce employers to enter such agreements . . .”’
(Pet. App. A, p. 43)
The en banc minority in a dissenting opinion written by
Judge Saeed and joined by Judges Choy, Anderson and
Farri:.. concluded that the original three-judge panel opinion
of thc Court was correct, and that the import of this Court’s
decision in Connell required the view that the proviso sanc-
tioned only those clauses which were both in the context
of a bargaining relationship and which were operational only
at sites when union workers worked alongside non-union
workers. (Pet. App. A, p. 44)
vReY
REASONS FOR GRANTING THE WRIT.
INTRODUCTION.
This case raises “*. . . important questions concerning
the scope of 8(e) of the National Labor Relations Act
...” (Pet. App. A, p. 1). (emphasis added)
In that manner, the en banc Court below began its ma-
jority opinion legalizing broad ‘‘cease doing business’’
agreements. Its holding that a construction union may enter
into broad union-signatory subcontractors clauses, and may
picket to secure them, so long as the clauses are part of or
sought in a collective-bargaining relationship, effectively
permits a construction union to engage in unlimited ‘‘top-
down’’ organizing contrary to decisions of this Court and
to Congress’ legislative judgment. Moreover, the en banc
majority’s reasoning fails to give credence to this Court’s
prior holding that the proviso’s shelter must be limited to
clauses whose purpose is to alleviate jobsite frictions on
particular common-situs construction sites.
This Court previously has recognized that broad union-
signatory subcontractors clauses, such as those validated by
the decision below, can have far-reaching adverse conse-
quences. In Connell Construction Co., Inc. v. Plumbers
& Steamfitters, Local Union 100, 421 U.S. 616 (1975), this
Court, considering a clause almost identical to those here,
noted in an anti-trust context that such provisions outside
a bargaining relationship were not related to any policies
protected by the labor laws, and that such provisions could
have the potential to restrain competition in ways that
**. . . would not follow naturally from the elimination of
competition over wages and working conditions.’’ /d., at
625.
The broad union-signatory subcontractor clauses involved
here are ‘‘agreements to conduct a secondary boycott’’. As
such, their validation can only serve to cause substantial
and significant policy conflicts under the federal labor laws
ee | eae
such as (1) the statutory right of workers to freely choose
their bargaining representative without the coercive ‘‘top-
down’’ organizing inherent in secondary-boycott union-sig-
natory subcontractor clauses vs. the desire of construction
unions to utilize subcontractor clauses as ‘‘top-down’’ or-
ganizing tools because of the nature of the construction
industry, and (2) a construction union’s interest in stand-
ardizing wages and working conditions vs. the right of con-
struction users, owners, developers, and general contractors
to determine the identity of the firms with whom they will
do business without broad union restraints on that choice.
The delicate balance between these policy questions was
struck incorrectly by the Court below in favor of a con-
struction union’s unrestrained use of union-signatory sub-
contractor clauses and against the statutory and common-
law rights of workers and employers.
The decision below, thus, adversely affects the construc-
tion industry and federal labor policy. Thousands of con-
struction workers who have chosen to remain non-union,
or who have chosen to be represented by other than the
*‘correct’’ union are penalized for such a choice: their work
opportunities are lessened by their employers’ ineligibility
to compete for work in a certain segment of the construction
market. Moreover, the construction users’ and general con-
tractors’ acknowledged freedom to determine the most ef-
ficient, and perhaps the least costly, manner of performing
work has been restrained.
Hence, the important matters of federal policy presented
by the issues in this matter and by the decision below reveal
the necessity for their review and resolution by this Court.
ARGUMENT.
The Decision Below Conflicts With This Court’s Decision
in Conneii Construction Co., Inc. v. Plumbers &
Steamfitters, Local Union 100, 421 U.S. 616 (1975).
The pivotal question before the Court of Appeals was:
how broad an exemption from Section 8(e) of the Act did
Congress intend to give construction unions when it added
it’, ae
the construction industry proviso to that Section? That was
the same question presented to this Court in Connell Con-
struction Co., Inc. v. Plumbers & Steamfitters, Local Union
100, supra. The Court of Appeals and this Court are in
conflict on the answer to this question, and this conflict
requires prompt resolution by this Court.
In Connell, this Court concluded that the proviso’s ex-
emption had to be determined in light of the statutory setting
surrounding its enactment. After reviewing that setting, it
narrowed the proviso’s literal meaning, asserting that its
exemption is narrower than its words. Fairly interpreted,
Connell holds that the shelter, if any, given secondary sub-
contract provisions by the proviso is no greater than the
reason for the proviso’s enactment. /d., at 628.
In Connell, the union demanded that Connell execute an
agreement which would have required that Connell sub-
contract its plumbing mechanical work only to firms which
had agreements with Local 100. When Connell refused to
execute the agreement, Local 100 picketed Connell’s jobsite
to compel its execution. Connell did not normally perform
plumbing mechanical work with its own employees, and
Local 100 was not and did not want to be the collective-
bargaining representative of any of Connell’s employees.
The Court, when presented with the question as to whether
or not this particular subcontracting agreement fell within
the protection of the construction industry proviso to Section
8(e) of the Act, held that although the agreement appeared
privileged by the proviso’s words, the agreement was not
so privileged because, in the Court’s opinion:
**. . . we think [the proviso’s] authorization extends
only to agreements in the context of collective-bar-
gaining relationships, and in light of congressional ref-
erences to the Denver Building Trades problem, pos-
sibly to common-situs relationships on particular jobsites
as well.’’ 421 U.S. at 633.
|
This Court interpreted the construct construction industry
proviso as ‘‘a measure designed to allow [certain secondary]
agreements’’ pertaining to work on a construction site,
because of the close community of interests shared by work-
ers there, including the interest of avoiding the frictions that
may arise when union men work continuously alongside
non-union men at a construction site. /d., at 630.°
The decision below, however, concluded that the pre-
vailing thrust of Connell favors a ‘‘broader view of the
[construction industry proviso’s] exemption’’ (Pet. App. A,
p. 23) that would essentially permit all union-signatory sub-
contractor clauses, even those which are not directly related
to union worker vs. non-union worker ‘‘interests’’ on a
*Accord, International Union of Operating, Engineers, Local 542
(York County Bridge), 216 N.L.R.B. 408, (1979), enforced, 532
F.2d 902 (3rd Cir. 1976) (‘The 8(e) proviso was intended to prevent
labor strife among non-union and union employees at the same jobsite’’);
Drivers, Salesmen, etc., Local 695 v. N.L.R.B., 361 F.2d 547, 553
(D.C. Cir. 1966) (‘*The purpose of the Section 8(e) proviso was to
alleviate the frictions that may arise when union men work continuously
—— non-union men on the same construction site’’); Essex County
and Vicinity District Council of Carpenters v. N.L.R.B., 332 F.2d 636,
640 (3rd Cir. 1964) (‘*This limited exemption was granted apparently
in recognition of problems peculiar to the construction ewer nd gl
eg those resulting from sporadic work st $ occasi by
the traditional refusal of craft union men to work alongside non-union
men on the same project’); Associated General Contractors of Cali-
fornia, Inc. pbs R.B., ay F.2d Sena Regd yoind f tnd
construction viso was designed to enabie employers
unions to t friction between union and non-union employees on
the same Pbsite"’).
Obviously, the *‘close community of interests’’ referred to by the
Court incl the narrower ‘‘shoulder-to-shoulder’’ purpose. However,
the *‘close orem of interests’’ purpose is no broader than the
behind the 1959 Con ional proposals to overrule Denver
uilding Trades, see 421 U.S. at 629, and is no broader than the
protection of the common interests shared by all workers at the common
situs— **. . . they work side by side and the wages and working con-
p> ncend of ving trade ~~, - ed ore het off 195 cn Labor-
anagement Reporting isclosure Act , at :
Accordingly, it would that the proviso’s sanction is clearly
no broader than the of the union's interest in preventing
jobsite tension between the union and non-union workers over their
union versus non-union status c their working conditions.
TAC Ye
particular construction site. In this regard, the en banc Court
of Appeals suggests that the maintenance of industry-wide
contract standards or preserving the general continuity in
benefits of the unions’ members are interests protected by
the proviso. (Pet. App. A, pp. 26-27, and p. 51, Judge
Farris, dissenting.)
This Court’s view of the exemption provided by the pro-
viso and that of the Court of Appeals are, hence, in direct
conflict.
This Court’s view of the proviso would shelter only those
otherwise secondary agreements which are related to the
proviso’s jobsite interests. The latter would shelter those
which are related to general construction union interests
such as maintaining industry-wide contract standards.’
Under this Court’s rationale, subcontractor clauses which
restrict a contractor from subcontracting to non-union sub-
contractors are sheltered by the Section 8(e) proviso only
if there are in the context of a collective-bargaining rela-
tionship and then only if they are limited in language, pur-
pose, and use to the union’s interest on particular jobsites
in alleviating the frictions that may arise between union and
non-union workers at the site, or to some other specific
interest at a particular site."
Under the Court of Appeals’ rationale, such clauses are
sheltered invariably by being in a collective-bargaining re-
"The en banc Court's t view that Congress intended for the
proviso to protect con standards in the construction industry does
not find any definitive support in the legislative history to Section 8(e)
or its proviso. Moreover, **contract standards’’ would appear to be ca-
“nytt ageweracs by a primary ‘‘union standards’’ clause which would
ide the general of Section 8(¢) and, thus, not covered by
= — : any event. See, dissenting opinion of Judge Farris at Pet.
. A, p. 51)
Tas Petitioner understands Connell, the words *‘collective-bargaining
relationship’’ refer to one where the contractor employs workers rep-
resented by the signatory union at the particular jobsite. It is only then
that the contractor is not a ‘‘stranger’’ to the union.
saci i
lationship without regard to the purposes served by such
clauses or the magnitude of the restraint on doing business
involved.
The Court below buttressed its conclusion by remarking
that Congress was aware of and approved a ‘‘pattern of
collective-bargaining,’’ which included broad union-sig-
natory subcontractor clauses, and that Congress thus in-
tended for the proviso to legalize these specific kinds of
clauses. (Pet. App. A, p. 24).
However, this Court has dismissed the legislative history
reference to a ‘‘pattern of collective bargaining’’ as support
for the reason for enactment of the proviso. 421 U.S. at
628-29. This Court felt that the proviso was a ‘‘partial
substitute’’ for legislatively overruling this Court’s decision
in N.L.R.B. v. Denver Building & Construction Trades
council, 341 U.S. 675 (1951), and confined the proviso’s
purpose and exemption to that problem.
The Court of Appeals’ decision does not so limit the
proviso, but expands it to permit a construction union to
utilize union-only subcontracting provisions simply because
they are contained in a union contract and recite that they
will apply to some construction site, somewhere. This is
contrary to this Court’s belief that such clauses are
legitimated by the proviso only where they are limited to
particular construction sites involving common-situs inter-
ests.”
*Professor Gorman, has concluded:
**Because of the frictions ecenampens | created by the presence in
the construction industry of union and nonunion employees work-
ing side-by-side at the jobsite, section 8(e) expressly exempts from
its ban hot ae pad grt acy ‘relating to the contracting or sub-
contracting of to be done at the site of the construction.’
**The [Connell] Court read the legislative history of the con-
struction industry proviso to evidence a Congressional concern
for the union which used the hot cargo agreement in order to
eliminate the friction of having union and nonunion employees
working alongside each other on a construction site. This policy
(footnote continued on following page)
ae oe
The Court of Appeals’ approval of broad union-signatory
subcontractor clauses restrains the contractor's subcontrac-
tor’s employees in the selection of their collective-bargain-
ing representative, forcing them to choose the signatory
union as their representative and economically penalizing
those employees for their free choice not to be represented
by the signatory union, a different union or no union, by
making their employer ineligible to compete for certain
work. Permitting this type of economic coercion in aid of
a construction union’s organizing would open that glaring
loophole in the Act’s restrictions on *‘top-down’’ organizing
not intended by Congress or by this Court, /d. at 633. As
this Court has stated before: “The Act is wholly neutral
when it comes to that basic choice [for or against a particular
union.]’’ N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270, 278
(1973). The Court of Appeals’ decision taints the neutrality
of the Act, contrary to this Court’s and Congress’ intent.
This Court concluded in Connell that Congress intended
that garment industry unions could use subcontractor agree- »
ments as organizational weapons, but that construction
unions were not to be permitted to use broad top-down
economic pressure in aid of organizational goals. /d., at 630
(‘*. .. Congress did not .. . indicate that [construction
unions] were free to use subcontracting agreements as a
was licable to the union in Connell because that union was
not seeking to protect the employees of the general contractor
(whom they were not organizing) from working alongside non-
union employees, was not seeking thus to protect its own members
(since the ban on subcontracting would apply even on jobsites at
which these members were not yet employed, and even if they
were employed the ban would not forbid the use of other nonunion
subcontractors), and was not seeking to ize en particular
Seirus te adtoiice wee pera te h the picketing took
place (since ve was generally to exert pressure on me-
chanical subcontractors in the Dallas area). The Court doubted
that Congress intended to shelter hot cargo agreements with con-
tractors who were ‘strangers’ to the union, thereby giving con-
. pacer mae ‘an almost pre wpe ren bp a in
achie ‘top-down’ nst wi of employ-
ees.’’ R. Gorman, Basic Test on poe Law 271-73 (West, 076)
(emphasis added).
i
broad organizational weapon.’’) The Court of Appeals’ de-
cision permits the very vice this Court did not believe should
be the province of construction unions.
In sum, the decision below is contrary to the language,
policy, and intent of this Court’s Connell! decision. Con-
sequently, the Court of Appeals’ conclusion that the
**. .. existence of a collective-bargaining relationship
clearly brings a union-signatory subcontracting agreement
within the proviso to 8(e) . . .’"’ was wrong. This error
requires prompt review and reversal by this Court.
The Decision Below Presents Important Questions, Pre-
viously Unanswered by This Court, Concerning the
Extent of the Validity Under Section 8(e) of the Act
of Agreements to Conduct Secondary Boycotts in
the Construction Industry.
In Local 1976, United Brotherhood of Carpenters etc.,
et al. v. N.L.R.B. (Sand Door and Plywood Company), 357
U.S. 93 (1958), this Court exhaustively examined the leg-
islative history, meaning, and reach of Section 8(b)(4) of
the Act as applied to a construction union’s attempted use
of a ‘‘hot cargo’’ clause — an agreement to conduct a
secondary boycott — in a collective bargaining agreement
as a defense to that Section of the Act. This Court held that
such a provision, even if voluntarily agreed to, could not
be such a defense.
But this Court, in Sand Door, did not reach the validity
or legality of such a provision contained in a collective-
bargaining agreement. Indeed, the Court stated: ‘‘There is
no occasion to consider the validity of hot cargo provisions
as such.’’ 357 U.S. at 107.
When Congress attempted to strike down ‘‘hot cargo’’
clauses in the main portion of Section 8(e) and to exempt
from that prohibition certain agreements relating to the con-
tracting of work to be done at construction sites, it assumed
the legality of the latter agreements. Thus, the legislative
history to Section 8(e) and the proviso contains statements
that such jobsite construction agreements *‘. . . appear to
be legal today. . . .”’ Il, Legislative History of the LMRDA
of 1959, p. 1433.
This Court had not then so ruled, and it has not yet
definitively done so. This Court’s decisions in National
Woodwork Manufacturers Ass'n v. N.L.R.B., 386 U.S. 612
(1967), and Houston Insulation Contractors Ass'n v.
N.L.R.B., 386 U.S. 664 (1967), dealt with the primary-
secondary scope of Section 8(e) of the Act, but not
with the application of that Section’s construction industry
proviso.
This Court’s decision in Connell Construction Co., Inc.
v. Plumbers & Steamfitters, Local Union 100, supra, did
construe the application of the construction industry proviso
to a ‘hot cargo’’ clause -— specifically, a union-signatory
subcontractor clause — but did so in an anti-trust context
and in a situation not involving a collective-bargaining
agreement.
Hence, this case presents an appropriate vehicle for this
Court now to delineate what it left open in Sand Door and
did not definitively determine in Connell: the extent of the
validity or invalidity of ‘‘hot cargo’’ provisions, including
union-signatory subcontractor clauses, in construction in-
dustry collective-bargaining agreements, and the types of
such agreements Congress meant to protect under the pro-
viso to Section 8(e).
Such a determination, of necessity, will require an ex-
amination of the purpose of the enactment of Section 8(e)
and its construction industry proviso, an examination
initially articulated by this Court in National Woodwork
Manfacturers Ass'n v. N.L.R.B., supra, continued, ex-
haustively, in Connell Construction Co., Inc. v. Pi nbers
& Steamfitters, Local Union 100, supra, and in need of
further clarification by this Court to clear up ambiguities
remaining after Connell. Thus, on the question of the pur-
=
pose and breadth of the proviso, the decision below was
adverse to Petitioner. But, as the majority of the en banc
Court noted:
**[T]he Connell decision, . . . admittedly has language
that might point to either result .. .’’ (emphasis
supplied) (Pet. App. A, p. 39)
Indeed, the en banc Court below split 7-4 on the question
of the congressional intent behind the proviso, on the ques-
tion of the validity of the subcontractor clauses at issue, and
on the interpretation of the Connell opinion’s language con-
cerning the shelter afforded such agreements by the proviso.
The four dissenting judges concluded that the subcontractor
agreements in issue could not be privileged by the proviso
because in their view, and, the now-vacated view of the
three-judge panel of the Court, 609 F.2d 1341 (9th Cir.
1979), subcontractor clauses are privileged only in the con-
text of a collective-bargaining relationship and then only
if applicable to particular jobsites where union workers are
working with non-union men.
In contrast, the seven judges in the majority, admitting
the ambiguity of the words, stated:
‘Finally, in summarizing the proviso’s effect, the
Connell Court stated:
‘(W]e think its authorization extends only to agree-
ments in the context of collective bargaining rela-
tionships and in light of congressional references to
the Denver Building Trades problem, possibly to
common-situs relationships on particular jobsites as
well.’
421 U.S. at 633. While it might be susceptible to an-
other reading, (emphasis supplied) we interpret this
language to mean that the existence of a collective
bargaining relationship clearly brings a union signatory
subcontracting agreement within the proviso to §8(e)
and that in the absence of a collective bargaining re-
lationship, it is possible that such an agreement may
—_20—
be valid where the union actually has workers on the
job that may be threatened with shoulder-to-shoulder
friction.””’’ (Pet. App. A, 37)
The seven-judge majority added that the Courts and com-
mentators have varied in their understanding of whether or
not the above-quoted Connell language requires both a
collective-bargaining relationship and a limitation to partic-
ular jobsites, (Pet. App. A, p. 37, n.37),
Clarification of the extent of the proviso's shelter is now
needed in view of the lack of clarity in Connell on this
point, For example, a distinguished commentator has stated:
**Logically, under the [Connell] major ty’s rationale,
either the existence of a collective bargaining relation-
ship or the limitation of the agreement to particular
jobsites (where union men are working?) would appear
to be a separate, independent basis for Section 8(e)
proviso coverage and concomitant antitrust immunity.
The Connell opinion is not clear on these points.”’
(emphasis added.)
St. Antoine, ‘‘Connell: Antitrust Law At The Expense of
Labor Law,"’ 62 Va. L. Rev. 603, 619 n.74 (1976).
The instant case presents the opportunity for this Court
to give the industry and the Courts definitive guidance on
when these ‘secondary boycott’’ agreements, even though
contained in a collective-bargaining relationship, are legi-
timated by the proviso to Section 8(¢). The Court should
take this opportunity to do so in view of the substantial
importance the case has in the application of the Act to
construction industry unions, workers, and empioyers, and
in view of the substantial conflict within the Court of Ap-
peals below on this issue.
Es
The Extent of a Construction Union’s Right to Engage
in Top-Down Organizing by Picketing Employers
to Obtain Union-Signatory Subcontracting Agree-
ments Has Not Been and Should Be Determined by
This Court.
The Court of Appeals’ decision sustains the Board's view
that a construction union can utilize strikes and picketing
to obtain a union-only subcontracting agreement if that
agreement is otherwise protected by the construction in-
dustry proviso to Section 8(e) of the Act. (Pet. App. A, pp.
40-41). This conclusion of both the Board and the Court
of Appeals is contrary to the legislative history behind the
enactment of the proviso and Section 8(b)(4)(A) of the Act.
This Court has never determined the extent to which a
construction union can utilize coercive conduct to extract
union-signatory subcontracting agreements from unwilling
employers. It should take the opportunity to do so in this
case,
In this regard, in Connell Construction Co., Inc. v.
Plumbers & Steamfitters, Local Union 100, supra, this
Court acknowledged the contention that the proviso to Sec-
tion 8(e) of the Act was intended to permit only voluntary
jobsite subcontracting agreements. In view of its holding
that the agreement there was outside the proviso, this Court
did not reach the issue, 421 U.S. at 634, n.14. As this Court
noted in Connell, the foundation for this contention was that
Congress intended Section 8(b)(4) of the Act to forbid such
picketing. /d.
Subsequent to the 1959 congressional amendments which
added Section 8(e), its proviso, and Section 8(b)(4)(A) to
the Act, the Board construed the legislative history to these
Sections to mean that Section 8(b)(4) outlawed all picketing
or economic coercion designed to force an employer to enter
into union-signatory subcontracting agreements otherwise
protected by the proviso. Construction, Production, and
of
Maintenance Laborers Union, Local 383 (Colson and Ste-
vens Construction Co., Inc.), 137 N.L.R.B. 1650 (1962),
enf. denied, 323 F.2d 422 (9th Cir, 1963). The Board's
position in Colson and Stevens was fairly straight-forward.
It found support in the Conference Report to the House
dealing with the enactment of the proviso to Section 8(¢)
for the proposition that Congress intended for the proviso
to permit only voluntarily-entered subcontracting agree-
ments, Thus, in the Board's view, if such were entered into
involuntarily, they were prohibited by Section 8(e) and the
coercion used to exact them would be within the literal
proscription of Section 8(b)(4)(A) of the Act. /d., 137
N.L.R.B. at 1651-52.
The circuit courts which considered the issue shortly
thereafter disagreed with this view. Essex County and Vi-
cinity District Council of Carpenters and Millwrights v.
N.L.R.B., 332 F.2d 636 (3d Cir, 1964); Orange Belt District
Council of Painters No. 48 v. N.L.R.B., 328 F.2d 534, 537
(D.C. Cir, 1964); Construction, Production & Maintenance
Laborers Union, Local 383, 323 F.2d 422 (9th Cir, 1963),
The Board subsequently agreed with those courts that since
Section 8(b)(4)(A) referred to only ‘‘agreements prohibited
by Section 8(e),"’ the construction proviso was incorporated
by that reference and that it, thus, literally permitted pick-
eting and strikes to force a construction employer to agree
to a proviso-protected subcontracting clause. Northeastern
Indiana Building and Construction Trades Council (Cen-
trilivre Village Apartments), 148 N.L.R.B. 854 (1964),
Adherence to this rule by the Court, below, which is at
variance with the legislative ‘istory, permits a construction
union to do that which Mr. Justice Powell, writing for a
majority of the Court in Connell, stated was contrary to
congressional intent: permitting construction unions to use
broad subcontracting agreements as ‘‘top-down"’ organizing
tools. Here, the Unions are and have been at liberty to strike
and picket Woelke & Romero because the latter would not
er
agree to take part in the Unions’ top-down organizing in-
herent in agreeing to the subcontractor clause. Woclke &
Romero is now and has been powerless to resist the Unions’
coercive pressure except by executing the agreement. Sec-
tion 8(b)(7) of the Act, 29 U.S.C. $158(b)(7) affords no
remedy, contrary to the implication of the en banc majority
below (Pet. App. A, p. 36) inasmuch as that Section applies
only to picketing for the purposes of acquiring initial union
recognition and not to picketing in furtherance of contract
demands during an existing bargaining relationship. N.L.R.B.
v. Iron Workers, Local 103 (Higdon Contracting), 434 U.S.
335 (1978). The Court of Appeals below has stated that
Section 8(b)(4)(A) of the Act does not prohibit the Unions’
conduct. The Unions’ coercive force for a top-down organ-
izing agreement is, therefore, unlimited and unrestrained
here: even though Woclke & Romero had a bargaining re-
lationship with the Unions and did say ‘‘No’’ to them when
it was asked to sign a contract containing those provisions,
it subjected itself to unrestrained picketing pressure to force
it to so agree as a penalty for that bargaining position. This
Court has doubted that Congress intended for construction
unions to have such unrestrained power. Connell Construc-
tion Co., Inc. v. Plumbers & Steamfitters, Local Union 100,
supra, at 631-32.
Further, this Court has heretofore indicated ‘*. . . that
§8(e) must be interpreted in light of the statutory setting and
the circumstances surrounding its enactment... .’”’ /d., 421
U.S. at 628. And, the circumstances surrounding its en-
actment show that Congress did not intend that restrictive
secondary subcontracting agreements could be obtained by
picketing. Thus, in explaining the Conference Report to the
House dealing with the enactment of the proviso, Repre-
sentative Barden, one of the conferees, stated:
‘*The first proviso under subsection (e) of section 704
permits the making of voluntary agreements between
a labor organization and an employer in the construc-
_24—
tion industry relating to the contracting or subcontract-
ing of work to be done directly on the site of construc-
tion.
**This proviso is intended to permit what is now lawful
and deals only with situations where there is a con-
tractor or subcontractor relationship and not to situa-
tions where there is no privity of contract between two
or more contractors on a particular site. Such as in the
case of cocontractors, each having direct contracts with
the owner.’’ (Emphasis added.) II, Legislative History
of the LMRDA of 1959, p. 1715.
Since one of the major aims of the 1959 Act was to
restrain and limit ‘‘top-down’’ organizing, to permit a con-
struction union to avoid these restrictions by picketing to
obtain a secondary union-signatory subcontractor clause
would open a loophole in the Congressional scheme.
Connell Construction Co., Inc. v. Plumbers & Steamfitters,
Local Union 100, supra at 632-33.
Finally, inasmuch as part of the Congressional scheme
may have been to preserve the law existing prior to 1959
as to a union’s right, or lack thereof, to picket to obtain
such agreements, it would be more in line with the Congres-
sional intent to prohibit picketing to secure such agreements.
The Board had held prior to 1959 that picketing to achieve
a subcontractors clause was illegal under Section 8(b)(4).
See, e.g., Local 47, Teamsters (T. C. Bateson Construction
Co., and Texas Industries), 112 N.L.R.B. 923 (1955),
enf’d, 234 F.2d 296 (Sth Cir. 1956); Bangor Building
Trades Council, AFL-CIO (Davison Construction Com-
pany, Inc.), 123 N.L.R.B. 484 (1959), enf’d, 278 F.2d 287
(1st Cir. 1960); Bricklayers, Masons etc. (Selby-Battersby
& Company), 125 N.L.R.B. 1179 (1959). Consequently,
it is also likely that Congress did not intend for Section
8(b)(4)(A) to be construed to overrule that body of law by
permitting unions to picket to obtain binding agreeements
not to deal with non-union firms.
net cn
This issue has plagued the industry since the 1959 amend-
ments, and the vice of the current rule is plain. This Court
should provide guidance as to the extent to which such
coercive conduct may be permitted under the Act.
Conclusion.
For the reasons set forth above, a Writ of Certiorari should
be issued by this Court to review the judgment of the
U.S. Court of Appeals for the Ninth Circuit in this matter.
Los Angeles, California
Dated: April 28, 1981
Respectfully submitted,
JOHN W. PRAGER, JR.,
4000 MacArthur Boulevard,
Suite 900,
Newport Beach, Calif. 92660,
(714) 752-6100,
Attorney for Petitioner.
APPENDICES
APPENDIX A.
Opinion.
United States Court of Appeals for the Ninth Circuit.
Pacific Northwest Chapter of the Associated Builders
& Contractors, Inc., Petitioner vs. National Labor Relations
Board, Respondent. No. 78-3469.
Oregon-Columbia Chapter, The Associated General Con-
tractors of America, Inc., Petitioner, vs. National Labor
Relations Board, Respondent. No. 78-3487.
International Union of Operating Engineers, Local No.
701, Petitioner, vs. National Labor Relations Board,
Respondent. No. 78-3619.
Woelke & Romero Framing, Inc., Petitioner, vs. National
Labor Relations Board, Respondent, Carpenters Local No.
944 and Carpenters Local No. 235, Intervenors. No.
78-3468.
National Labor Relations Board, Petitioner, vs. Carpen-
ters 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, Respondent. No. 79-7011.
Petitions for Review of Orders of the National Labor
Relations Board. Argued and submitted October 16, 1980.
Before: Browning, Chief Judge, Choy, Wallace, Sneed
Anderson, Schroeder, Fletcher, Farris, Nelson, Canby and
Norris, Circuit Judges.
Filed: April 17, 1981.
CANBY, Circuit Judge.
These cases raise important questions concerning the
scope of § 8(e) of the National Labor Relations Act, 29
U.S.C. § 158(e), which prohibits ‘‘hot cargo’’ agreements.
The primary issue is whether the construction industry pro-
on
viso to § 8(e) renders lawful clauses in collective bargaining
contracts forbidding the employers to subcontract work at
any construction site to a firm not having a contract with
the signatory union. Additional issues are whether unions
may picket or strike to induce an employer to enter these
agreements and whether the agreements, once entered, may
be enforced by picketing or strikes. We conclude that the
subcontracting clauses fall within the construction industry
proviso and consequently do not violate § 8(e). We also
conclude that unions may picket or strike to obtain such
agreements, but not to enforce them. The orders of the
National Labor Relations Board are accordingly enforced.
I.
FACTS.
Two orders of the Board are under review here pursuant
to 29 U.S.C. § 160(e) and ¢f). The first concerns a collective
bargaining agreement between Oregon-Columbia Chapter
of the Associated General Contractors of America, Inc.,
(AGC) and Local 701 of the International Union of Oper-
ating Engineers (Engineers). AGC is an association of some
200 employers engaged in construction in Oregon and south-
west Washington. These employers have delegated their
collective bargaining authority to AGC. AGC and Engineers
entered into a collective bargaining agreement effective
from June 1, 1975, through May 31, 1980, which contained
the following clause:
Article VIII
Subcontractors and Other Employers.
Section 1. Employers shall not contract any work
covered by this Agreement to be done at the site of the
construction, alteration, painting or repair of a build-
ing, structure or other work to any person, firm or
company who does not have an existing labor agree-
ment with the Union covering such work.
2.
Subsequent clauses' provide for a grievance procedure
leading to arbitration and further provide that should the
parties fail to comply with the arbitrator’s decision, then
**{e]ither party may take such action as they deem necessary
to enforce the findings. . . .’’ The effect of the latter pro-
vision is to permit either party to employ self-help, such as
strikes or lockouts, that would otherwise be prohibited by
another article of the agreement.
Upon complaint by Pacific Northwest Chapter of the
Associated Builders & Contractors, Inc., Engineers and
AGC were charged with violating § 8(e)’ of the National
‘Other relevant clauses of the AGC agreement are:
ARTICLE IX
Settlement of Disputes
Grievance Procedure
Section 1, In the settlement of disputes arising out of a violation,
misunderstanding or difference in interpretation of this agreement,
the following procedure shall be followed:
* +
* *
Section 5. Should the parties involved fail to comply with the
{arbitrator's} findings within five (5) days after such written no-
tification by either party . . ., then all means of arbitration shall
be considered exhausted.
Either party saw the. take such action as they deem necessary to
enforce the findings and they shall not be considered in
violation of any oat of this Agreement.
ARTICLE X
Strikes and Lockouts
Section 1. Unless otherwise provided herein, it is mutually
agreed that there will be no strikes or lockouts, or cessation of
work by either party, for the duration of this Agreement. All
disputes arising under this Agreement shall be submitted to the
<r. for the settlement of disputes as provided in this
greement
Section 8{e), 29 U.S.C. § 158(e), provides in pertinent part:
It shall be an unfair labor practice for any labor organization and
any ¢ er 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 shall be to such extent unenforceable and void:
Provided, That nothing in this subsection shall apply to an agree-
ment between a labor organization and an em in the con-
struction industry relating to the contracting or subcontracting of
work to be done at the site of the construction, er Painting
or repair of a building, structure, or other work .
pate YEN
Labor Relations Act, which prohibits agreements between
a labor organization and an employer in wh, h the employer
agrees to refrain from using the products of another em-
ployer or to cease doing business with any other person.
The case was submitted to the Board upon stipulated facts
and the Board found that, while the agreement fell within
the prohibition of § 8(e), it was exempted from the coverage
of that provision by the construction industry proviso ap-
. plicable to agreements ‘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 build-
ing, structure, or other work. . . ."’ The Board also ruled
that the clause authorizing enforcement of the subcontract-
ing provision by self-help was invalid. All parties petitioned
for review and the Board sought enforcement of its order.
The second decision of the Board concerns Woelke and
Romero Framing, Inc., (Woelke), a framing subcontractor
in the construction industry in Southern California. Woelke
was a party to a collective bargaining agreement entered on
July 5, 1974, with the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO (Carpenters), a group
which included Locals Number 235 and 944 involved in
this litigation. That agreement expired on June 15, 1977.
From about June 3, 1977, to August 4, 1977, Carpenters
and Woelke engaged in collective bargaining for the purpose
of negotiating a successor agreement. They broke off ne-
gotiations when they reached an impasse over several is-
sues.’ One such issue was the union's demand for a clause
*Another issue over which the parties reached impasse was Carpen-
ters’ demand to include Woelke's foremen in the ining unit. The
Board found that picketing to enforce this demand vio’ 8(b)(1)(B)
of the Act. The union has not contested that ruling in this court. We
therefore enforce the Board's order concerning this issue.
a as
in the contract that prohibited Woelke from subcontracting
work at any construction jobsite ‘‘except to a person, firm
or corporation, party to an appropriate, current labor agree-
ment with the appropriate union, or subordinate body sig-
natory to this Agreement.’"* In support of Carpenters’ de-
mand for this contract provision, Locals 235 and 944
picketed Woelke’s construction sites, causing some work
stoppages. The two locals were charged with violation of
§ 8(b)(4)(i) and (ii)(A) of the Act® for picketing to require
“The proposed clause provides:
The Contractor agrees that neither he nor any of his subcon-
tractors on the jobsite will subcontract any work to be done at the
site of construction, alteration, painting or repair of a building,
structure or ope work (including quarries, rock, sand and gravel
— asphalt a= , feady-mix concrete plants, established on
jacent to jobsite to process or supply materials for the
pot ovo of the Contractor for jobsite use) except to a person,
firm or corporation, party to an appropriate, current labor agree-
ment with the mada Union, or subordinate body signatory
to this Agreement.
*Sections 8(b)(4)(i) and (ii)(A) and (B), 29 U.S.C. § 158(b)(4)(i) and
(iiMA) and (B), provide:
©), It shall be an unfair labor practice for a labor organization
or its nts —
(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, ma-
terials, or commodities or to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where in either case an
object thereof is —
(A) forcing or requiring coe Pama ded or self-employed per-
son to join any labor or employer —— or to enter into
pra agreement which is prohibited by subsection (e) of this
(B) serge or requiring any person to cease using, selling,
espe pone ing, or otherwise dealing in the products of
oe » processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring
any other employer to recognize or bargain with a labor or-
fiber oe as the representative of his ¢ —— unless such
abor organization has been certified as tative of
h employees under the provisions of section 159 of this
title: Provided, That nothing contained in this clause (B) shall
be construed to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing. . . .
a
an employer ‘‘to enter into any agreement which is prohib-
ited by section 8(e)."’
The case was submitted to the Board upon stipulation and
the Board found that the proposed subcontracting agreement
was not prohibited by § 8(e) because it fell within the con-
struction industry proviso, and that picketing to obtain such
a clause therefore did not violate § 8(b)(4). Woelke petitions
for review of the Board’s order, and the Board seeks
enforcement.°
Both decisions of the Board were reviewed by a panel
of this court. 609 F.2d 1341 (9th Cir. 1979). On the au-
thority of Connell Construction Co. v. Plumbers & Steam-
fitters Local Union No. 100, 421 U.S. 616 (1975), the panel
held that the subcontractor clauses were prohibited by § 8(e)
and did not fall within the protection of the construction
industry proviso because their applicability was not limited
to jobsites where members of the signatory union were em-
ployed at some time during the construction project. Having
found the present clauses nenforceable, the panel did not
reach the questions whether picketing or striking either to
obtain or enforce a lawful subcontractor clause would violate
§ 8(e). 609 F.2d at 1351. This court subsequently ordered
rehearing before a limited en banc panel as provided by
Public Law 95-486, 92 Stat. 1629, 1633 and Rule 25 of this
court.
*Along with the cases, re at 239 N.L.R.B. 274 (Pacific
Northwest) and 239 N.L.R.B. 241 (Woelke), the Board decided
Angeles Building & Construction Trades Council (Donald Schriver,
Inc.), 239 N.L.R.B. 264 (1978), and Colorado Building & Construction
Trades Council, 239 N.L.R.B. 253. The Board's order upholding broad
subcontractor ments in Schriver was enforced by the carey of
Columbia Circuit in an extensive and instructive opinion b fr
wards. Donald Schriver, Inc. v. NLRB, Nos. 78-3177
Ke
op. (D.C. Cir. Oct. 20, 1980).
em 25
Il.
ISSUES.
Four issues are presented for determination in these cases:
(1) Are the subcontracting clauses ‘‘secondary’’ and
therefore within the scope of § 8(e)?
(2) If the clauses are within the scope of § 8(e), are
they exempted from its proscription by the construction
industry proviso?
(3) If the subcontracting clauses are lawful, does it
nevertheless violate § 8(b)(4) for a union to picket or strike
to induce an employer to agree to one?
(4) If the subcontracting clauses are lawful, does it
nevertheless violate § 8(b)(4) to enforce them by picketing
or strikes?
Il.
APPLICABILITY OF § 8(e).
The subcontractor clauses in the present case clearly re-
quire the signatory employer to cease or refrain from using
the products of another employer or to cease doing business
with another person. The clauses consequently fall within
the literal language of § 8(e). In National Woodwork
Manufacturers Association v. NLRB, 386 U.S. 612 (1967),
however, the Supreme Court held that § 8(e) is not to be
read as expansively as its language seems to indicate. The
Court pointed out that the purpose of Congress in enacting
§ 8(e) was to pronibit voluntary arrangements that reached
the same result as coercive secondary boycotts prohibited
by § 8(b)(4)(ii)(B) of the Act. The Court therefore held that
an agreement between a union and an employer which pro-
hibited certain kinds of subcontracting was permissible so
long as the objective was to preserve work traditionally
performed at the jobsite by employees of the primary em-
ployer. Such a ‘‘work preservation’’ clause was viewed as
primary and therefore did not constitute an unfair labor
practice.’ The test whether an agreement was primary and
permissible was ‘‘whether the agreement or its maintenance
is addressed to the labor relations of the contracting em-
ployer vis-a-vis his own employees.’’ /d. at 645. An agree-
ment was secondary and prohibited when ‘‘the agreements
and boycotts were tactically calculated to satisfy union
objectives elsewhere.’’ Jd. at 644.
By the National Woodwork test, union signatory clauses
such as those in issue here are secondary in objective. They
do not seek to preserve work for the employees of the
contracting employer by limiting the amount of subcon-
tracting. Nor do they seek to protect the wage and benefit
standards of those same employees in their present em-
ployment by merely limiting subcontracting to third parties
who maintain equivalent standards. Instead, these union
signatory clauses permit unlimited subcontracting so long
as the subcontractors have an agreement with the contracting
union. Such clauses are properly viewed as secondary, for
they are intended to satisfy union objectives involving em-
ployees and employers outside of the bargaining or work
unit. Griffith Co. v. NLRB, 545 F.2d 1194 (9th Cir. 1976),
cert. denied, 434 U.S. 854 (1977); NLRB v. National Mar-
itime Union, 486 F.2d 907 (2d Cir. 1973), cert. denied,
416 U.S. 970 (1974).
It is contended by Engineers that the objective of pre-
serving work within the entire multi-employer bargaining
™Union standards’’ clauses, which soquice that an employer not
subcontract with anyone whose wage and fit scale does not meet
union standards, have also been held primary. The purpose of such
clauses is deemed to be protection of the pay and benefit scales of the
workers of the ee! employer. Truck Drivers Union Locui No. 413
v. NLRB, 334 F.2d 539, 548 (D.C. Cir.), cert. denied, 379 U.S. 916
(1964); NLRB v. National Maritime Union, 486 F.2d 907, 912 (2d Cir.
1973), cert. denied, 416 U.S. 970 (1974).
or Tae
unit of AGC is a primary goal and that this fact should take
its subcontracting clause outside of the scope of § 8(e). This
argument fails for two reasons. First, the clause in question
does not limit subcontracting to firms that are members of
AGC. Outsiders having an agreement with Engineers are
eligible, even though they and their employees are wholly
foreign to the multi-employer bargaining unit. The clause
therefore is not a primary work preservation clause. NLRB
v. National Maritime Union, 486 F.2d at 914. Second,
§ 8(e) applies in any event to an agreement which attempts
to preserve work for an entire multi-employer unit rather
than for single employers’ employees. This court dealt with
the issue in NLRB v. Joint Council of Teamsters No. 38,
338 F.2d 23, 28 (9th Cir. 1964):
Respondents seem to argue that [the clause] falls within
the exception to section 8(e) because it preserves the
job opportunities of employees within the multi-
employer bargaining unit by prohibiting subcontracting
to any employer outside that unit. But if this argument
were accepted, the exception to section 8(e) would
permit precisely what the section itself was intended
to prohibit: An agreement by an employer to boycott
another unless the latter entered into a union contract.
Accord, NLRB v. National Maritime Union, supra.
The union’s further contention that work preservation for
the employees of each contractor was one of the objectives
underlying the union subcontracting clause, does not compel
us to alter our conclusion. Regardless of the union’s other
objectives, if ‘‘an object of a clause is to aid union members
generaily rather than members of the unit, the object is
secondary and unlawful.’’ National Maritime Union, 196
N.L.R.B. 1100, 1101 (1972), enforced, 486 F.2d 907 (2d
Cir. 1973), cert. denied, 416 U.S. 970 (1974) (emphasis
supplied).
ee ae
It is true that the primary-secondary distinction is partic-
ularly difficult to maintain in the construction industry,
where contractors and subcontractors assemble their work
forces for specific short-term jobs. There is a great deal of
flexibility and interchangeability of employees between bar-
gaining units. As a result, a subcontractor clause may well
serve the interests of union members in the primary bar-
gaining unit who may later find themselves working for a
subcontractor. While we believe that fact to be of great
significance for purposes of determining the scope of the
construction industry proviso, we do not view it as deter-
minative of the initial applicability of § 8(e) itself. See NLRB
v. National Maritime Union,supra, at 913-14. The primary-
secondary distinction between separate employers working
the same jobsite in the construction industry has been
adhered to in the past, NLRB v. Denver Building & Con-
struction Trades, 341 U.S. 675 (1951), and we do not feel
free to disregard it here. Moreover, the consequences of
viewing union signatory clauses as primary would be not
only to remove them from the scope of § 8(e) but also to
remove picketing to enforce such agreements from the pro-
hibition of § 8(b)(4)(ii)(B). For reasons stated in Section
VI of this opinion, we believe that permitting coercive en-
forcement of union signatory clauses would be contrary to
the intent of Congress.
We accordingly hold that the union signatory clauses in
these cases are secondary and within the scope of § 8(e).
Their validity consequently depends upon their eligibility
for inclusion within the construction industry proviso to that
section.
IV.
SCOPE OF THE CONSTRUCTION INDUSTRY
PROVISO TO § &(e).
In order to ascertain the scope of the construction industry
proviso, it is necessary to examine its legislative history in
the light of the practices existing in the industry at that time
and the law then applicable. In so reviewing the origins of
the 1959 Landrum-Griffin Act of which § 8(e) and its pro-
viso were a part, we recognize that our initial conclusions
as to its meaning are subject to any modifications or cor-
rections that may be compelled by a fair reading of Connell
Construction Co. v. Plumbers & Steamfitters Local Union
No. 100, 421 U.S. 616 (1975). Indeed, it is the effect of
Connell that provides the primary ground of controversy in
the present litigation. We believe, however, that the Connell
decision is best analyzed after a review of the state of the
industry and the legislative and administrative history of the
proviso governing it.
(A) Construction Industry Background.
The primary characteristics which differentiate the con-
struction industry from most others are well stated in the
Senate Report on the 1959 amendments:
The occasional nature of the employment relationship
makes this industry markedly different from manufac-
turing and other types of enterprise. An individual
employee typically works for many employers and
for none of them continuously. Jobs are frequently of
short duration, depending upon various stages of
construction.
S. Rep. No. 187, 86th Cong., Ist Sess. 27 (1959); I
Legislative History of The Labor-Management Reporting
and Disclosure Act of 1959 423 (hereinafter Leg. Hist.).
These peculiarities of the construction industry created spe-
cial problems for both unions and employers long before
1959. Unions had to overcome difficulties of organizing
temporary workers and of maintaining wage and benefit
standards in unstable employment conditions. Employers
required a ready source of skilled workers available for each
new job, and had to be able to forecast labor costs accu-
rately. To satisfy these needs, unions and employers ham-
sill as
mered out a number of mutual accommodations. One such
arrangement was the closed shop, which was prevalent in
the industry by the 1920’s.* A second was negotiation of
area-wide agreements covering all construction work of a
certain type, with multiple contracting employers agreeing
to the standards set in those agreements.’ Of necessity, these
contracts dealt with wages, hours and working conditions
of employees yet to be hired for particular jobs by particular
employers.’ A third device was the agreement to restrict
subcontracting in various ways — to firms maintaining
union standards, or to firms that were unionized,"' or to .
firms that agreed to bind themselves to contracts with the
union signatory to the subcontracting clause."
Some of these devices were not necessarily consistent
with the organizational scheme of the National Labor Re-
lations Act in its original form. The Act initially caused no
disruption in the pattern of collective bargaining in the con-
struction industry, however, because the National Labor
Relations Board declined to exercise jurisdiction over that
industry.'* The Taft-Hartley Amendments to the Act, passed
"Haber, Industrial Relations in the Building Industry 238-40 (1930).
A stud by the National Manufacturers Association reported that in
1926, of all construction work was done under closed-shop con-
ditions. Id. at 240.
"Dunlop, The Industrial Relations System in Construction, in The
Structure of Collective Bargaining 255, 256-57 (Weber ed. 1961).
"S. Rep. No. 187, supra, 28; 1 ae Hist. 424. sgt og em Le
on Labora the Reform Legislation, Hearings before Subcommittee
the Committee of Labor and Public Welfare, United States
Senate (hereinafter Senate Hearings), 86th Cong., Ist Sess. 136
(testimony of Professor Cox).
"A union to limit subcontracting to union firms was held exempt
from the antitrust laws as early as 1934. Levering & Garrigues Co. v.
Morrin, 71 gi 7 te ah oe mye denied, 293 U.S. 595 (1934).
" Marcus, — pan, on the Labor-Man-
Reporting Duccionee As Act of 959, 822, 824 (Slovenko ed.
1)(hereinafter referred to as LMRDA Symposium).
"Brown and Root, Inc., 51 N.L.R.B. 820 (1943; Johns-Manville
Corp., 61 N.L.R.B. 1 (1945).
a,
in 1947, led to a reversal of the Board’s position. Those
amendments prohibited striking or picketing to coerce an
employer to refrain from dealing in the products of any
other employer or to cease to do business with any other
person. § 8(b)(4)(A).'* Subsequent to the amendments, the
Board’s General Counsel determined that the construction
industry would be regulated by the Board.'*
One effect of applying the amended Act to the construc-
tion industry was the invalidation of collective bargaining
agreements entered before any employees were hired on the
job. Guy F.. Atkinson Co. and J.A. Jones Construction Co.,
90 N.L.R.B. 143 (1950), enforcement denied on other
grounds, 195 F.2d 1 (9th Cir. 1952). The amended Act was
also applied to prohibit a construction union from picketing
a jobsite in order to force the general contractor with whom
it had a collective bargaining agreement to cease doing
business with a particular subcontractor on the job whose
employees were non-union. NRLB v. Denver Building &
Construction Trades Council, 341 U.S. 675 (1951). The
“The re oe ——- of § 8(b)(4)(A) are now in § 8(b)(4)(ii)(B),
quoted in
*Denham, 7 “Tat. Act’ s Impact on the Construction Industry, reprinted
in 21 L.R.R.M. 44 (1948). The Board's decision to exercise jurisdiction
over the industry following of the Taft-Hartley Amendments
resulted, in aro from the nts’ prohibiting the closed shop
“back ccuillaniie induces crews’’ (featherbedding), two accepted practices in the
Despite the General Counsel's action, the Taft-
Act was mee Mag ignored within the construction won Toney until
the Board decided United Ass’ n of Journeymen & Apprentices of Plum
ing and Pipefitting Industry (Brown-Olds), 115 N.L.R.B. 594 (1956),
and Mountain Pacific Chapter of Associated General Contractors Inc.
(Mountain-Pacific), 119 N.L.R.B. 883 (1958), remanded on other
= 270 F.2d 425 (9th Cir. 1959).
, The LMRDA and the coger 4 and Construction Industry,
A Symposium, note 12, supra, 1019, 1029. Thereafter the Gen-
ito bring its hiring A pac into line wth the provieioas of tae
to ts hiring nto line wi provisions 0}
Taft-Hart Hartley Act See ton, Union Hiring Halls: NLRB Rules,
Penalties, +) i R.R.M. 101, 103 (1958).
in
picketing was found to violate § 8(b)(4)(A)’s prohibition
of coercive secondary boycotts.
These applications of the amended National Labor Re-
lations Act to the construction industry were sufficiently
disruptive of existing practices that there was agitation for
modification of the Act, particularly in regard to pre-
hire practices and secondary activity. In 1954, President
Eisenhower called for amendments to permit prehire agree-
ments and to shorten to 7 days the time by which a nonunion
worker could be required to join a union under a union-shop
agreement. 100 Cong. Rec. 111, [1954] U.S. Code Cong.
& Admin. News 1532. Again in 1959, when calling for
amendments to tighten the prohibition against secondary
boycotts, the President added that provisions were needed
**to make clear that secondary activity is permitted .. .
under certain circumstances, against secondary employers
engaged in work at a common construction site with the
primary employer.’’ S. Doc. 10, 86th Cong., Ist Sess.; 105
Cong. Rec. 1297; I Leg. Hist. 82.
Accommodation to the special conditions of the construc-
tion industry was consequently an important consideration
that found expression in the 1959 amendments to the Act.
Those amendments, however, also embodied another major
goal of Congress at the time—that of limiting ‘‘hot cargo”’
agreements.
In June 1958, the Supreme Court had decided Local 1976,
United Brotherhood of Carpenters v. NLRB, (Sand Door),
357 U.S. 93. Sand Door stated that a union did not violate
§ 8(b)(4)(A) by securing the voluntary participation of an
employer in a boycott of another employer’s product. Al-
though the Court said it found no occasion to determine the
legality of ‘‘hot cargo’’ clauses (by which an employer
agreed to boycott nonunion firms) as such, id. at 107, Sand
va.) ae
Door was widely interpreted as permitting them. The
decision was seen as creating a loophole in the Act, and it
contributed heavily to the move toward amending the
secondary boycott provision of the Act.
(B) The Landrum-Griffin Amendments and § 8(e).
The 1959 revisions of the Act accomplished the congres-
sional purposes in various ways. The clearest accommo-
dation to the peculiar conditions of the construction industry
was found in § 8(f),"° which authorized unions and em-
ployers in that industry to enter prehire agreements fixing
terms and conditions of employment of workers yet to be
hired. This provision amounts to an exception to §§ 8(a)(1),
(2) and 8(b)(1)(A), which make it an unfair labor practice
for both the employer and the union to enter a collective
"Section 8(f), 29 U.S.C. § 158(f), provides:
It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the build-
ing and construction industry to make an agreement covering
employees en (or who, upon their employment, will be
engaged) in the building and construction industry with a labor
organization of which building and construction employees are
members (not established, maintained, or assisted by any action
defined in subsection (a) of this section as an unfair labor practice)
because (1) the majority status of such labor organization has not
been established under the provisions of section 159 of this title
prior to the making of such agreement, or (2) such agreement
requires as a condition of employment, membership in such labor
organization after the seventh day following the beginning of such
ray os yey, or the effective date of the agreement, whichever
is , or (3) such agreement requires the employer to notif\
such labor organization of opportunities for employment with suc
employer, or gives such labor organization an coporensy to refer
qualiiied for such employment, or (4) such agreement
ifies minimum training or experience qualifications for em-
ployment or provides for ity in opportunities for employment
upon length of service with such employer, in the industry
or in the particular ical area: Provided That nothing in
this subsection shall set aside the final proviso to subsection (a)(3)
of this section: Provided further, That any agreement which would
be invalid, but for clause (1) of this subsection, shall not be a bar
to a petition filed pursuant to section 159(c) or 159(e) of this title.
a ee
bargaining agreement before the union represents a majority
of employees in the unit. /nternational Ladies Garment
Workers Union v. NLRB, 366 U.S. 731 (1961); see NLRB
v. International Association of Bridge, Structural &
Ornamental Iron Workers, 434 U.S. 335, 344-45 (1978).
Section 8(f) also shortened to 7 days the period for non-
union workers to join the union under the union-shop agree-
ment.
Conflicting policies were reflected clearly in the passage
of § 8(e), which was intended to narrow or close the loophole
for ‘‘hot cargo’’ agreements created by the Sand Door de-
cision. The Senate bill prohibited such agreements only in
the trucking industry,'’ while the House bill outlawed them
everywhere."* The Conference Committee adopted the
House version, but added the provisos creating exceptions
for the garment and construction industries." The garment
industry exception was unlimited as to time and place,”
while the construction industry proviso excepted agreements
“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. . . .”’
"§. 1555, | Leg. Hist. 582.
""H.R. 8342 as amended by H.R. 8400, I Leg. Hist. 683.
"H.R. Rep. No. 1147 (Conference Report) 86th Cong., Ist Sess. 38-
40; | Leg. Hist. 942-44 (1959).
The garment industry proviso to § 8(e), 29 U.S.C. § 158i(e), states:
Provided further, That for the purpose of this subsection and
subsection (b)(4)(B) of this section the terms ‘‘any employer’’,
“any person engaged in commerce or an eyes Bagg: oy com-
merce’’, and ‘‘any person’’ when used in relation to the terms
“‘any other producer, processor, or manufacturer’, ‘any other
**, or ‘‘any other person’’ shall not include persons in
the relation of a jobber, manufacturer, contractor, or subcontractor
working on the goods or premises of the jobber or manufacturer
or performing parts of an integrated process of production in the
appare! and clothing industry. . . .
ret) ee
It is the nature and meaning of the construction industry
proviso’s restriction to the jobsite that gives rise to the
present controversy. The contractors assert that the proviso
is intended to authorize subcontracting clauses in collective
bargaining agreements only when union workers are present
at the jobsite, so that the presence of nonunion workers
there might lead to friction. The unions claim that the intent
was to authorize subcontracting clauses whether or not union
workers were at the jobsite, so long as the clauses refer to
work to be performed at the construction site. Although the
matter is not free from doubt, we believe that the legislative
history favors the latter view.
(C) Legislative Discussion of the Construction Industry
Proviso.
The legislative history regarding the construction industry
proviso is much less exhaustive than that surrounding the
garment industry proviso,”' but there are nevertheless in-
dications of congressional intent in the records. Senator
Kennedy, the chairman of the Conference Committee, said
of the two provisos, that ‘‘[bJoth changes were necessary
to avoid serious damage to the pattern of collective bar-
gaining in these industries.’’ 105 Cong. Rec. 17899; II Leg.
Hist. 1432. Unlike the garment industry, the construction
industry was not exempted from the provisions of § 8(b)(4)
that prohibited striking or picketing to coerce a secondary
boycott; it was merely exempted from § 8(e)’s prohibition
of agreements between a union and an employer by which
"There is a pet oan ex ion in the legislative hi of the
m1 Mowe poontractag ss ments in the garment
and isin of 'ewectety tions. See, ¢.g., 105 Cong. Rec.
17381, Il Leg. Hist. 1385 385 (Senators Javits and Go water); 105 bee
Rec. 15538, Leg. Hist. 1576 (Memorandum of R >
Udall); 105 Cong. Rec. 15848; Il Leg. Hist. 1680 (Rep. Teller).
the employer would boycott others. The Conference com-
mittee stated its intent in regard to the proviso as follows:
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. . . . To the extent that such agree-
ments are legal today under section 8(b)(4) . . ., the
proviso would prevent such legality from being af-
fected by section 8(e).
H.R. Rep. No. 1147, 86th Cong., Ist Sess. 39; I Leg. Hist.
943. Senator Kennedy analyzed the proposed § 8(e) as
follows:
The first proviso under new § 8(e) of the National
Labor Relations Act is intended to preserve the present
state of the law with respect to picketing at the site of
a construction project and with respect to the validity
of agreements relating to the contracting of work to be
done at the site of a construction project.
Agreements by which a contractor in the construction
industry promises not to subcontract work on a con-
struction site to a nonunion contractor appear to be
legal today. They will not be unlawful under § 8(e).
It should be particularly noted that the proviso relates
only to the ‘‘contracting or subcontracting of work to
be done at the site of the construction.’’ The proviso
does not cover boycotts of goods manufactured in an
industrial plant for installation at the jobsite, or
suppliers who do not work at the jobsite.
itn
105 Cong. Rec. 17900; II Leg. Hist. at 1433 (emphasis
supplied).
As Senator Kennedy made clear, unions continued to be
forbidden to picket or strike at a construction site for sec-
ondary objectives, which meant that the holding of Denver
Building Trades, supra, was \eft in effect. On the other
hand, the Conference Report and Senator Kennedy made
it equally clear that unions and employers could enter sub-
contracting agreements as permitted by law prior to the
enactment of the new § 8(e).
It seems more likely than not that the ‘‘present law’’
referred to by the Conference Committee did not restrict the
agreements that Senator Kennedy said ‘‘appear to be legal’
to jobsites where union workers were present. The Sand
Door decision, supra, which supplied much of the impetus
for § 8(e), had legitimized secondary boycotts the objec-
tives of which clearly went beyond the mere avoidance of
shoulder-to-shoulder friction between workers. It is true that
the construction industry proviso narrowed the geographical
scope of the Sand Door rule by introducing the jobsite
limitation, but we do not interpret the words of the proviso
as indicating an intent to narrow the substantive scope of
the Sand Door rule on the jobsite.
It should be noted that shortly before enactment of the
proviso, the District of Columbia Circuit had upheld a sub-
contractor agreement the terms of which were as broad as
those presently in issue. Operating Engineers Local Union
No. 3 v. NLRB, 266 F.2d 905 (D.C. Cir.), cert. denied sub
_-20—
nom. St. Maurice v. NLRB, 361 U.S. 834 (1959).” While
that case dealt with an interunion dispute, the terms of the
secondary agreement were not restricted to that or any other
situation of jobsite conflict. In upholding the agreement the
Court referred to the Board’s reasoning ‘‘that the preclusion
of future work to a prospective subcontractor in the circum-
stances did not justify the Board in holding that the rights
of unidentified employees of such prospective employer
were adversely affected.’’ 266 F.2d at 908.
Moreover, a survey of major labor contracts in existence
in 1959 revealed that more than 50 of them contained clauses
restricting subcontracting to firms complying with the terms
of the prime employer’s agreement. Lunden, Subcontracting
"The Engineers decision was submitted to the House Committee
investigating labor practices as part of the testimony of Paul H. Robbins,
Executive Director of the National Society of Professional Engineers.
2 Hearings Before a Joint Subcommittee of the Committee on Education
and Labor, House of Representatives, 86th Cong., Ist Sess. on H.R.
3540, H.R. 3302, H.R. 4473 and H.Rf. 4474 and Related Bills
Regarding Labor-Management Reform Legislation, 803-07 (1959)
(hereafter House Hearings).
In addition, Edward M. Carlton, office manager of St. Maurice,
Helkamp and Musser, the subcontractor involved in Engineers,
appeared before the Committee and testified as to the scope of the
su ing clause:
The Contract also contains a clause which is referred to in the
industry as the subcontractor clauses. In effect, that clauses (sic)
says that any time an AGC contractor subcontracts work the sub-
contractor must agree to apply the terms and conditions of the
AGC Operating Engineers’ agreement to his employees. This, of
course, means that the subcontractor’s employees must become
members of Operating Engineers local 3.
Since about 1955, the AGC and the Operating Engineers have
enlarged the subcontractor clauses so that an AGC contractor
will not subcontract any work unless the subcontractor agrees in
advance to be bound by the AGC Operating Engineers’
agreement.
5 House Hearings 2366 (Emphasis supplied).
Although the Engineers decision was not directly referred to in the
Senate Hearings, the problem of union signatory clauses was brought
. the committee’s attention. Senate Hearings 752 (Testimony of Sen.
urtis).
Clauses in Major Contracts, 84 Monthly Labor Review 579
(Part I), 715 (Part II) at 715 (1961). While the survey does
not adequately differentiate between union signatory clauses
and union standards clauses, it is nevertheless clear that
numbers of broad subcontractor agreements were in exis-
tence.” The survey canvasses various limitations appearing
in subcontracting clauses in the construction industry, but
makes no mention of any restrictions to the jobsite or ref-
erences to the problem of friction between union and non-
union workers there. /d. at 715-16. That there may not have
been a consistent pattern of subcontractor agreements of the
type in issue here is not crucial. What does emerge from
the contemporaneous scene is that some such agreements
existed and were legal and that Congress did not appear to
intend a change in that condition.
V.
(A) The Connell Decision.
It was against this industrial and legislative background
that the Supreme Court decided Connell Construction Co.
v. Plumbers & Steamfitters Local Union No. 100, 421 U.S.
616 (1975). Connell was an antitrust suit brought by a gen-
eral contractor against a union that was picketing in order
to coerce the contractor to enter an agreement to deal only
with subcontractors having a collective bargaining agree-
ment with the union. The union expressly disclaimed any
interest in representing the general contractor’s employees.
*Office of the General Counsel, Memorandum 76-57, December 15,
1976, reprinted in Labor Relations Yearbook 1976, p. 295. Because
Lunden failed adequately to distinguish between union signatory and
union standards clauses, the General Counsel found that **incon-
clusive."’ Jd. at 308. The General Counsel's own study concluded that
there was no ** ** of collective bargaining in the industry, but that
the existing c constituted only a ‘‘mosaic.’’ Union signatory
mor pepe tt eee proamsir erst inher mosaic.
Id. at 309.
wis, a
The picketing was successful and the contractor sought to
annul the ensuing agreement on the grounds that it violated
the antitrust laws.” One of the defenses raised by the union
was that the agreement could not be a violation of the
antitrust laws because it was authorized by the proviso to
§ 8(e) of the National Labor Relations Act. The Supreme
court rejected that defense and held that broad subcontract-
ing agreements applicable to every jobsite where the general
contractor might hire subcontractors were invalid when
entered outside of the context of a collective bargaining
relationship between the union and the general contractor.
The employers who attack the subcontracting clauses in
the present case argue that Connell’s language necessarily
requires a conclusion that subcontracting clauses are per-
missible only when they serve the purpose of avoiding job-
site friction between union and nonunion workers employed
at the same jobsite. So interpreted, Connell would invalidate
the agreements in issue here at least until the presence of
“Connell was another chapter in the dispute in Dallas between build-
ing contractors and trade u . In Dallas Building & Construction
Trades Council v. NLRB, 306 I F.2d 667 (D.C. Cir. 1968), a clause
similar to the one in Connell was at issue. Unlike Connell, however,
the general contractor that was picketed had nonunion employees. Al-
though the Trades Council expressly disavowed any interest in organ-
the contractor's workers, both the Board and the District
of Columbia Circuit Court of Appeals concluded otherwise. The court
held that because there was an organizational objective the picketing
was limited to thirty days by § 8(b)(7), a period which the unions had
exceeded.
The court's opinion left open the possibility of picketing more than
thirty days if the unions could conclusively show no organizational
objective. In order to avoid the § 8(b)(7) problem, the unions picketed
contractors who had rds waa G The contractors sought
to challenge this practice before the Board, but the General Counsel
refused to issue a psonudry See Connell, 483 F.2d 1154, 1158 (Sth
Cir. 1973), and 421 U.S. at 631-32 n.10.
When Local 100 began picketing Connell, the contractor did not file
laint with the Board, but immediately sued the union for violating
both federal and state antitrust laws.
or ae
union workers at a particular jobsite triggered their appli-
cation. We concede at the outset that the Connell opinion
contains considerable emphasis on problems of shoulder-
to-shoulder friction between union and nonunion workers
at the jobsite, and additional emphasis on antagonism of the
1959 Congress to ‘‘top-down’’ organizing that is one of the
effects of subcontractor agreements. Nevertheless, we be-
lieve that this reading of the Connell decision misconstrues
the Supreme Court’s view of § 8(e) and gives too narrow
a scope to the construction industry proviso. We think that
the prevailing thrust of Connell is to the contrary and favors
a broader view of the exemption. Our conclusion is sup-
ported in particular by the Connell opinion’s emphasis on
the absence of a colleciive bargaining relationship, its ref-
erences to legislative history, and its characterization of the
interests served by the proviso.” Our view is reinforced by
the adverse practical consequences that would follow from
the narrower reading of the proviso. Each of these factors
bears elaboration.
The first and most obvious distinction of Connell from
the present case is that the agreements in Connell arose
outside of the context of a collective bargaining relationship.
This fact was of course crucial for antitrust purposes, be-
cause the national policy of encouraging collective bar-
gaining has served as the basis for a judicially created labor
*But for the Connell decision, we would have no difficulty in en-
forcing the Board's order. Prior to Connell, this court, other circuits
and the Board had upheld broad subcontracting clauses in collective
bargaining agreements. See, e.g., Construction, Production & Main-
tenance Laborers Union, Local 383 v. NLRB, 323 F.2d 422 (9th Cir.
1963); Suburban Title Center Inc. v. Rockford Building & Construction
Trades Council, 354 F.2d 1, 2-3 (7th Cir. 1965), cert. denied, 384
U.S. 960 (1966) United Association of Journeymen & Apprentices of
rept gone | and Pipefitting Industry, Local 48, 190 N.L.R.B. 415,
( ).
ar, ae
exemption from the antitrust laws.” The absence of such
an interest was pointedly referred to in Connell:
In this case, Local 100 had an interest in representing
Connell’s employees. The federal policy favoring col-
lective bargaining therefore can offer no shelter for the
union’s coercive action against Connell or its campaign
to exclude nonunion firms from the subcontracting
market.
421 U.S. at 626.” The focus of the Connell decision was
therefore understandably upon the situation created by sub-
contracting clauses in the absence of a collective bargaining
agreement with the prime contracting employer.
That focus on the part of the Court was not merely the
product of the antitrust setting of Connell, however. The
parties themselves had framed the issues toward the same
end. The union contended that all subcontractor agreements
were validated by the plain words of § 8(e). The employer
responded by urging that ‘‘despite the unqualified language
of the proviso, Congress intended only to allow subcon-
tracting agreements within the context of a collective-
*See Connell, 421 U.S. at 622-23; St. Antoine, Connell: Antitrust
Law at the Expense of Labor Law, 62 Va. L. Rev. 603 (1976). Labor
unions also have a statutory exemption from the antitrust laws by virtue
of sections 6 and 20 of the Cla Act, 15 U.S.C. § 17, 29 U.S.C.
§ 52, and sections 4, 5 and 13 of the Norris-LaGuardia Act, 29 U.S.C.
$§ 104, 105, 113. These statutes declare that labor unions are not
combinations in restraint of trade and exempt specific union activities
including secondary boycotts from the antitrust laws and from certain
kinds of injunctive relief. These statutes do not, however, exempt con-
certed activity or ments between unions and non-labor ies.
Connell, supra, 622-23. See generally, R. Gorman, Basic Text on
Labor Law, 621-31 (1976).
"The fact that Connell was an antitrust case outside of the context
of collective bargaining led to a natural emphasis by the Court on the
pursuit of market efficiency through competition. This emphasis reap-
in the dissent here, infra p. .... , but we find it far less compelling
in this labor case in which no antitrust issues have been raised. The
thrust of the labor laws, of course, is frequently contrary to that of the
antitrust laws. See St. Antoine, supra, n. 26.
eo
bargaining relationship . . .,’’ but not those involving a
**stranger’’ contractor. Jd. at 627.” The subject of contro-
versy, then, was the validity of subcontractor agreements
outside of the collective bargaining context, and the Connell
opinion must to a large degree be read in that light. The
Court’s conclusion, seached after a discussion of the
legislative history and policies behind § 8(e), was clearly
limited to the situation before it:
We therefore hold that this agreement, which is outside
the context of a collective bargaining relationship and
not restricted to a particular jobsite, . . . may be the
basis of a federal anti-trust suit... .
Id. at 635. The holding of Connell, then, does not in the
strict sense control the cases before us.
The Connell opinion did, however, discuss at length the
reach of § 8(e) and its construction industry proviso, upon
which the present cases turn. It therefore becomes necessary
to interpret the language of Connell and apply it to the
situation of the cases at bar where a collective bargaining
ier... a beiet in Connell concentrated entirely on the distinction be-
presence and absence of a collective a ee
emia the validity of subcontracting clauses policy of
thats jobelte friction was raised tangentially in the a oll to
al 100’s brief which included a inemorandum by the N
Counsel explaining why he wouk! not issue a complaint “Wy a ‘oes
factually similar to Connell. Significantly, that memorandum, dealing
with Hagler Construction Co., was distinguished in the Connell opinion
as being ‘*. . . addressed to a different argument that a subcontracting
clause should be allowed only if there is a pre-existing collective
bargaining relationship gor the general contractor or if the ad any
cprecment."" 421°U. periorm the kind of work covered by the
421 . at 632 n. A. 10. (emphasis in original).
Biv,
relationship existed between the unions and the contractors
with whom the agreements were sought.”
A major question is whether the presence or absence of
a collective bargaining relationship, obviously significant
in the antitrust context of Connell, remains pivotal when
the issue is purely one of labor law.
We believe that there is a complex of factors affecting
labor relations in the construction industry that renders the
collective bargaining relationship crucial in the present cases
and we find the underlying policies reflected in parts of the
Connell opinion itself. We also believe that these factors
exist at the construction jobsite but are by no means limited
to the problem of shoulder-to-shoulder friction between
union and nonunion workers there. These two themes —
the nature of the collective bargaining relationship in the
construction industry and the manner in which these char-
acteristics are exhibited at the jobsite — are interwoven in
Connell as they are in the present controversy. We will
attempt, however, to discuss them separately even though
each will necessarily intrude upon the other.
The legislative history already discussed should make it
clear that the outstanding peculiarity of the construction
industry is that the work force of any given employer —
contractor or subcontractor — is highly flexible and grows
*In Woelke, the union had entered a three-year collective bargaining
agreement with the og og ol and the dispute arose during negotiation
to renew the contract. In Pacific Northwest, the union had long had a
continuous collective ning agreement with the Association of
General Contractors. We ore need not reach and express no opin-
ion on the whether a ‘‘prehire’’ agreement entered or sought
to § 8(f) of the Act is a sufficient ‘‘collective ining re-
** to render ible the entry of subcontracting agree-
ments. We note that ire ments were held sufficient to legitimize
subcontractin ts in Donald Shriver Inc. v. NLRB, Nos.
78-2177 and 79-1001, slip op. (D.C. Cir. Oct. 20, 1980).
ay,
or diminishes or even disappears depending on the tem-
porary contracting or subcontracting arrangements at any
particular jobsite. As Congress recognized in passing § 8(f),
collective bargaining cannot even await the presence of
workers on the job. Moreover, when there are workers al-
ready employed by a general contractor, the interests of
those employees are not permanently or inevitably bound
to that single employer. The employer has an option on any
given project to use some of his own workers, to subcontract
to an employer who will use those same workers, or to
subcontract to one who will use others represented by the
same union, a different union, or no union. Under those
conditions the employees and their unions are faced with
severe problems not only of maintaining wage levels, but
of protecting benefits such as retirement pensions and
paid vacations that depend upon continuity of employer
contributions.
When a union representing a contractor’s employees
seeks to restrict subcontracting to firms having a collective
bargaining agreement with the union, the union in fact pur-
sues a number of objectives some of which might fairly be
characterized as primary and others as secondary. The wel-
fare of the employees in the primary bargaining unit is
clearly likely to be affected by an employer's choice to hire
a subcontractor who may himself employ those same em-
ployees. On the other hand, the union clearly has secondary
goals that may include organizing the employees of a
subcontractor who have no connection with the primary
bargaining unit.
It is quite true that when a union seeks to serve the
interests of employees in its bargaining unit not as employ-
ees of their existing employer, but as potential employees
of some other employer, the arrangement is legally viewed
as secondary. National Woodwork, supra, at 644-45;
i,
National Maritime Union, supra. We do not quarrel with
this well-established rule, nor with the rule that when pri-
mary and secondary objectives are combined, an agreement
is regarded as secondary for purposes of the National Labor
Relations Act. NRLB v. Denver Building & Construction
Trades Council, 341 U.S. 675, 689 (1951).
We do, however, find sufficient support in the legislative
history of the 1959 Amendments to suggest that Congress
was sensitive to both the primary and secondary consid-
erations involved in subcontractor arrangements and wished
not to interfere with these mixed union objectives when they
could be achieved by agreement with the prime employer.
Even though a construction union’s interest in subcontract-
ing at the jobsite is seconciary so as to bring it within § 8(e),
it is far more direct and involves the union’s members in
the primary bargaining unit far more than is the case when
unions outside of the construction industry pursue secondary
objectives.
The importance of this fact is that it renders the existence
of a collective bargaining relationship highly significant.
When a union represents employees of a prime contractor
and seeks a subcontracting agreement, it has the interests
of the employees in its primary bargaining unit at stake to
at least some degree. In the Connell situation, the union is
utterly without any objective that could be characterized as
primary or direct. Because the union in Connell disclaimed
any interest in representing the employees of Connell, all
of its goals were necessarily secondary and could not be
connected to any primary representational interest.
The significance of the restriction of the § 8(e) proviso
to work performed at a jobsite may now become more clear.
It is at the jobsite that all of the special characteristics of
the construction industry are manifested. It is true that one
of these characteristics is that union workers are traditionally
—29—
hostile to the presence of nonunion workers on the same job
at the same time. But that is clearly not the only or even
the major characteristic exhibited. It is at the jobsite where
the general contractor can exercise the flexibility to use its
own workers or those of a subcontractor, where the flexi-
bility of subcontracting arrangements lead to multiple em-
ployers hiring a few workers for short periods of time,” and
where working conditions applicable to one set of workers
may very well affect others working on the same project.”'
We believe that the Connell opinion is sensitive both to
the interconnection of interests between employees of the
The 1977 Census of Construction Industries found that there were
more than 288,000 ‘‘specialty trade contractors’’ (a category which
includes fifteen different subcontracting functions). On the average,
each firm e six construction workers. U.S. Bureau of the Cen-
sus, Census of ion Industries (1977), cited in Statistical Ab-
stract of the United States (1979) Table 1365, p. 776.
One commentator has aptly summarized the peculiar problems con-
fronted by labor unions attempting to organize construction workers as
well as the techniques which they have employed:
Union insistence on having the contractor use only union men
runs counter to the general theory of free determination on which
the Wagner Act was based. Elections on the of th- »mployees
are impractical, however, in an industry w the employment
may be over before an election can be held, and where the em-
oyees on the next job may be a substantially different group.
t would be literally impossible to maintain a union if the men
had to be orga anew each time they went to a new job. The
the employer hes because the important ting sto organize the
im t thing is to organize
> on the Job. The building trade union
cannot operate x hy unless Ve can require the employer to
hire its pr th m the place.
[BJuilding trade unions [therefore] have not organized employees
by familiar to manufacturing. Instead, the construction
unions have, in effect, organized the employers. An agreement
with the that he will hire only union members is much
the most ve way to standardize working conditions in an
industry where jobs are so fluid.
Fleming, The Building Trades and Title VII of LMRDA, in LMRDA
Symnpos ium, , Note 12, at 1034, 1043.
Schriver Inc., supra, slip op. at 43-46.
a
various contractors and subcontractors and to the broad
manner in which any or all of these factors may be exhibited
at the jobsite. In dealing with the legislative history of the
construction industry proviso, the opinion in Connell points
out that the proviso was ‘‘explained only by bare reference
to ‘the pattern of collective bargaining’ in the industry.’’
421 U.S. at 628-29. The legislative history discussed above
indicates, we believe, that the pattern of collective bar-
gaining included broad subcontracting agreements. To the
extent that the just-quoted comment in Connell dismisses
the history regarding the pattern of collective bargaining,
it may well be explained by the fact that Connell was dealing
with a case nut considered by Congress, in which there was
no collective bargaining relationship.”
In any event, the subsequent language of the Connell
opinion appears quite clearly to encompass the multiple
considerations affecting the construction industry at the job-
site. The opinion suggests that the construction industry
proviso may have been adopted ‘‘as a partial substitute for
an attempt to overrule’’ Denver Building Trades, 421 U.S.
at 629. Denver Building Trades had outlawed the picketing
of a contractor at a jobsite in order to force it to cease doing
business with a nonunion subcontractor working there. The
Connell opinion refers to congressional discussion of special
problems in the construction industry related both to the §
™In Connell, the Fifth Circuit requested om the parties and their
amici submit tal briefs concerning the aap bargaining
practices at the of the 1959 amendments. union was unable
to provide any information which would allow the conclusion that
stranger clauses were part of the and that Congress therefore
intended to preserve this practice. 483 F.2d at 1182 (dissenting opinion).
Such is not the case with regard to particular union clauses. The decision
of the District of Columbia Circuit in Operating Engineers, supra, as
well as the House and Senate Hearings, supra, note 24, suggest that
Congress was well aware of the existence of these clauses.
oie, ped
8(e) proviso and to the attempt to overrule Denver Building
Trades. That discussion, according to the Court, ‘‘focused
on the problems of picketing a single nonunion subcon-
tractor on a multiemployer building project, and the close
relationship between contractors and subcontractors at the
jobsite.”’ Id. at 629-30. The Court’s footnote to this state-
ment refers to legislative history that clearly goes beyond
the problem of shoulder-to-shoulder conflict between union
and nonunion workers at the jobsite. The first excerpt re-
ferred to is by Senator Morse whose statement includes the
following:
The secondary boycott ban is based upon the concept
of two employers — a primary and a secondary em-
ployer. The theory is that a neutral employer should
not be compelled to suffer because of a labor dispute
the union has with somebody else, but the theory breaks
down when the two employers are ‘‘allies.’’ Senator
Taft said that the secondary boycott section ‘‘is not
intended to apply to a case where the third party is,
in effect, in cahoots with, or acting as a part of, the
primary employer.’’” The National Labor Relations
Board and the courts have failed to keep Senator Taft's
concept in mind. The Board has considered subsidiaries
to be separate employers. Other enterprises, substan-
tially controlled by the same persons, have been con-
sidered separate employers, even though one manu-
factured a product incorporated into the finished article
produced by the other.
The case of the building and construction industry rep-
resented probably the most flagrant injustice, where
“Senator Taft’s remarks were part of a colloquy with Senator Ives
on June 30, 1949, 95 Cong. Record 8709. Senator Taft was referring
to the garment industry, but he cited for apt denies a case that
involved the construction industry: Douds v. Metropolitan Federation
Architects, Engineers, Chemists & Technicians, Local 231, (Project
ngineering Co.,), 75 F. Supp. 672 (S.D.N.Y. 1948).
co, ae
a general contractor is, in effect, entirely in control of
the kind of labor relations taking place on a site which
he runs. He lets subcontracts based upon price, re-
sponsibility, and the ability to handle labor relations.
He lets those contracts, very well knowing the kind of
labor relations which may exist within any of the sub-
contractor companies. He is not acting in the dark, Mr.
President. He is not innocent of any unfair labor pol-
icies on the part of a subcontractor.
105 Cong. Rec. 17880-81; II Leg. Hist. at 1425. Even
where the sources cited by Connell deal with union workers
at the jobsite, they reflect a number of interests of the union
that affect members of its own bargaining unit as well as
the members in secondary employ. The memorandum by
_fepresentatives Thompson and Udall is illustrative:
Where all the men are employed on the same project,
the division into different trades or crafts, each with
its own employer, must not be allowed to obstruct their
common interests—they work side by side and the
wages and working conditions of one trade affect all
the others. This situation is utterly unlike the situation
in true secondary boycotts, as where carpenters in Los
Angeles refuse to work on nonunion doors made in
Minnesota by men whose wages could not affect the
wages of carpenters in Los Angeles. The illegality of
such a boycott would not be affected by the amend-
ment.
. . . [A] reason for outlawing secondary boycotts is
that they drag neutral employers into disputes in which
they have no interest. Where all the employers affected
are bound together in the common work of putting up
a single building, none is truly neutral. The undertaking
is so integral that each is affected by and can influence
the conduct of the others.
hha ia
105 Cong. Rec. 15541; II Leg. Hist. 1577. These materials
cited by the Connell Court suggest a number of reasons why
Congress may have wanted to restrict the construction in-
dustry’s use of subcontracting agreements to work done
on a jobsite. These sources do not limit themselves to
and, indeed, place very little emphasis on, the problem of
shoulder-to-shoulder friction between union and nonunion
workers actually present at the jobsite.
The Connell opinion quotes National Woodwork Manu-
facturers, supra, to the effect that the construction industry
proviso is ‘designed to allow agreements pertaining to cer-
tain secondary activities on the construction site because of
the close community of interests there, but to ban secondary-
objective agreements concerning nonjobsite work, in which
respect the construction industry is no different from any
other.’’ 421 U.S. at 630, quoting 386 U.S. at 638-39. It
is clear that the Connell opinion views the jobsite consid-
erations of National Woodwork as going well beyond the
problem of friction among workers,” because Connell next
refers to some courts that have suggested that the proviso
serves an ‘‘even narrower function’’ — the alleviation of
**the frictions that may arise when union men work contin-
uously alongside nonunion men on the same construction
site.’’ Id. at 630, quoting Drivers Local Union No. 695 v.
“Indeed, National Woodwork contains a footnote reference succeed-
ing the discussion of the ‘‘close community of interests’ on the jobsite.
386 U.S. at 639 n. 32. That footnote refers to Essex County and Vicin‘ty
District Council of Carpenters and Millwrights v. NLRB, 332 F.2d 636
(3d Cir. 1964), which does deal with shoulder-to-shoulder friction. It
also refers, however, to a Yale Law Journal Comment. The Impact of
the Taft-Hartley Act on the Building and Construction Industry, 60 Yale
L.J. 673, 684-89 (1951), which discusses not vee jobsite friction but
also the additional considerations of interchangeability of workers, short
time span, flexible contracting arrangements, and numerous other in-
terests that a union representing a pri group of employees may
have in the employment arrangements of employers at the jobsite.
>
ve Y sae
NLRB, 361 F.2d 547, 553 (D.C. Cir. 1966). The Connell
opinion does not adopt this ‘‘even narrower’ "eading of the
proviso, and indeed finds it unecessary to treat the matter
further because in the Connei/ -ase the union did not purport
to represent any of the interests served by the proviso. 421
U.S. at 631.”
We believe that it would do some violence to the language
of the Connell opinion to adopt the ‘‘even narrower’’ view
of the construction industry proviso which the Court in
Conneili did not represent to be its own. Yet this consequence
would follow from restricting the applicability of subcon-
tractor agreements to those instances where shoulder-to-
shoulder jobsite friction can occur. Instead, we think that
it is more in accord with the language of Connell to permit
those agreements to apply to any jobsite at which an em-
ployer with a collective bargaining relationship with the
union is a contractor.
We concede that the language of the Connell opinion
dealing with congressional antagonism to ‘‘top-dow or-
ganizing’’ may well lean in a direction contrary to our views.
We think it is countered by Connell’s recognition of other
vital concerns of collective bargaining in the construction
industry reflected in the community of interest at the jobsite.
Essentially the same situation was dealt with by this court in ACCO
Construction Kaui nt, Inc. v. NLRB, 511 F.2d 848 (9th Cir. 1975).
ACCO does contain i language tending to restrict the jobsite proviso to
the goals of avoiding -to-shoulder friction, but we do not read
that as essential to its decision. ACCO was written before Connell and
it dealt with what were essentially off-site workers who only occasion-
ally worked on-site. They and their employers were not at all involved
in the ‘community of interests’’ which are emphasized in National
Woodwork, Connell, and this opinion. The union’s objectives in or-
ganizing such off-site workers were indirect and wholly secondary; the
primary interests of workers in the bargaining unit at the jobsite could
not be directly affected by, and were not interchangeable with, the off-
site workers.
eK a
There is some ‘‘top-down organizing’’ effect in any. sub-
contracting agreement, including those which all parties
must admit would be valid and within the proviso. When
there are union workers on the job next to nonunion workers,
the enforcement of a subcontracting clause is still likely to
have a top-down organizing effect. The answer to this point
is simply that Congress recognized that the community of
interests on the jobsite justified the top-down organizational
consequences that may attend the protection of legitimate
collective bargaining objectives there. The proviso is, after
all, an exception to the general thrust of the 1959 amend-
ments.”°
The Connell opinion’s condemnation of the ‘‘unlimited’’
top-down organizing weapon with which it was confronted
must be read in the context of the applicable factual and
statutory framework. Because tne union in Connell dis-
claimed any interest in organizing or representing Connell’s
employees, its picketing was not limited to the 30 days
established for organizational picketing under § 8(b)(7). It
could therefore picket indefinitely to obtain its objective of
a subcontracting agreement covering all subcontracting by
Connell. If the subcontractor clause were held to be legit-
imate, there would be no limit at all to the coercive force
the union could apply. The decision in Connell solved this
problem by holding that the subcontracting agreement was
an unlawful goal when it was sought outside of a collective
bargaining context.
“Because the proviso is an exception to the 1959 amendments, we
cannot accept the test for its interpretation adopted at the conciusion of of
the dissent. The issue is not which interpretation is the more faithful
to Congress’ overall goal in the 1959 amendments of curbing ee
down’’ organizing. Instead, the question is which i
effectuates Congress’ sconmodaton of he confcting objectives of
curbing *‘top-down’’ organizing and of protecting collective ining
under the peculiar conditions of the construction industry.
i
The situation is quite different when a union seeks a
subcontractor clause in the context of a collective bargaining
relationship. In that situation, the union's coercive force is
limited. If the clause is sought in the course of organizational
or recognitional picketing, that picketing will be subject to
the restrictions of § 8(b)(7). If the union already represents
the contractor’s employees, the employer may resist any
attempts to secure a subcontractor agreement by asserting
its own bargaining position and presenting its own demands.
The existence of a collective bargaining relationship there-
fore avoids the ‘‘unlimited’’ nature of the organizational
tool involved in Connell, where a stranger contractor was
powerless to resist unlimited coercion by any means other
than signing the demanded subcontractor agreement.
Finally, in summarizing the proviso’s effect, the Connell
Court stated:
[W]e think its authorization extends only to agreements
in the context of collective bargaining relationships
and, in light of congressional references to the Denver
Building Trades problem, possibly to common-situs
relationships on particular jobsites as well.
421 U.S. at 633. While it might be susceptible to another
reading, we interpret this language to mean that the existence
of a collective bargaining relationship clearly brings a union
signatory subcontracting agreement within the proviso to
§ 8(e) and that in the absence of a collective bargaining
relationship, it is possible that such an agreement may be
valid wh~re the union actually has workers on the job that
oA”, Bae
may be threatened with shoulder-to-shoulder friction.’’ We
consequently believe that the quoted summary supports our
conclusion that Connell does not deny the protection of the
proviso to the subcontractor agreements in the present cases.
(B) Practical Consequences.
Our reading of Connell to permit broad subcontracting
clauses within a collective bargaining relationship not only
accords with the apparent thrust of the legislative history,
it is supported by the severe practical limitations attending
a contrary conclusion. Limitation of subcontracting agree-
ments to sites where there may be shoulder-to-shoulder con-
flict between union and nonunion workers presents immense
practical problems. If unions are confined to negotiating
these agreements only when they find that there are union
employees on the jobsite, then they must inventory and
negotiate over an incredible number of jobsites. AGC itself
represents some 200 general contractors. The number of
jobsites at which they contract is unquestionably a multiple
of that figure. Jobsite by jobsite negotiation of subcontract-
"Our reading of the quoted language in Connell as nting dis-
junctive ‘alternatives Te tee than conjunctive and cumulative require-
ments is 8 by the District of Columbia Circuit and probably by
the Third it. Donald Schriver, Inc., supra; Larry V. Muko, Inc.
v. Southwestern Pennsylvania Building & Construction Trades Council,
609 F.2d 1368, 1374-75 (3d Cir. 1979) (en banc). Lower courts and
commentators have varied in » gg bs sear to the underlying issue. See
a Specialties, Inc. v. rers’ International Union, Local
806, 477 F. Supp. 17 (C.D. Cal. 1979); Long v. Floorcraft Carpet Co.,
82 Labor cases { 10,044 (D. Or. 1977); St. Antoine, supra, 62 Va. L.
Rev. at 619; Janofsky & Hay, Connell — Consistent with Past, Indic-
ative of Future, Proceedings of N.Y.U. Twenty-Ninth Annual Confer-
ence on Labor 3, 21-22 (1976).
Normally, a union without a collective bargaining relationship that
secks a clause will be pursuing no interest that could
impact upon its primary representation of anyone. The rare exception
might occur when the union has its own employees working for some
other employer on the jobsite and shoulder-to-shoulder friction
oe...
ing agreements would seem burdensome to the point of
impossibility. It also appears to run counter to Congress’s
accommodation in § 8(f) to the necessity in the industry of
entering long term agreements applying to employees not
yet hired for jobs not yet in existence. S. Rep. No. 187,
86th Cong., Ist Sess. 28 (1959); I Leg. Hist. 424.
Even if general subcontracting agreements are permitted
to be negotiated wholesale and then are triggered only when
union workers appear on the job, the enforcement problems
remain severe. The transitory nature of employment at each
jobsite, as well as the difficulty of defining the applicable
time span during which jobsite conflict is threatened, present
substantial problems.” If a rule is adopted that the appear-
ance of any union worker on the job triggers subcontracting
agreements covering the entire project, it presents an es-
pecially strong incentive for anti-union discrimination by
employers.
We are presented, then, with a number of practical and
theoretical considerations supporting our decision that the
present subcontracting agreements, arrived at in the context
of collective bargaining relationships, are within the proviso
of § 8(e). First, there are overwhelming practical difficulties
in confining the subcontractor agreements to jobsites where
actual union-nonunion or interunion conflict occurs among
workers. Second, the legislative history as well as the actual
conditions existing in the construction industry militate in
favor of broad subcontractor clauses in collective bargaining
“The dissent makes the point that even under our decision, unions
must police F aseg y to ensure compliance with subcontractor clauses.
We believe that it is a more manageable task, however, to police jobsites
to ensure that subcontractors working there have agreements with the
licing union than it is to determine whether any union worker has
working on the jobsite at any time, or perhaps at any time when
that worker's presence might lead to jobsite friction.
ae
agreements. Third, the Connell decision, which admittedly
has language that might point to either result, may fairly
be read to support the validity of subcontracting clauses
when there is a collective bargaining relationship, regardless
of the presence or absence of union workers at the jobsite.
Given these considerations, we reject a narrow interpre-
tation of the proviso which will substantially change the
existing practice in the industry. In addition, we believe that
due regard should be given to the view of the National Labor
Relations Board supporting these agreements.” It is true
that the position of the agency has not been an unwavering
one,” but the Board’s articulation of current labor policy
is undoubtedly entitled to weight in our decision.
VI.
ADDITIONAL ISSUES.
It is contended by AGC that even if the construction
industry proviso authorizes clauses requiring subcontractors
to have agreements with unions in general, ‘t does not permit
clauses to require a collective bargaining agreement with
a particular union. We note, however, that nothing in the
language of the § 8(e) proviso suggests such a limitation,
even though ‘‘particu!ar-union’’ clauses were a part of in-
dustry practice at the time of its enactment. Two months
prior to the creation of the proviso, the District of Columbia
Circuit upheld a ‘‘particular-union’’ subcontractor agree-
ment in a decision that was submitted to the House com-
NLRB v Yeshiva University, 444 U.S. 672, 691 (1980). C. e
Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-01 (1978), and NLRB
Vv. iaternatianal Association of Bridge, Structural & Ornamental Iron
Workers, 434 U.S. 335, 350-51 (1978), with NLRB v. International
Longshoremen's Association, 100 S. Ct. 2305 (1980).
See International Union of Operating Engineers, Locals 542,
542-A and 542-B, (York County Bridge, Inc.) 216 N.L.R.B. 408, 409
(1975), enforced, 532 F.2d (3d Cir. 1976), cert. denied, 429 U.S.
1072 (1977), General Counsel Memorandum, note 25, supra.
ip.
mittee considering the 1959 amendments. Operating En-
gineers Local Union No. 3 v. NLRB, supra; 2 House
Hearings 803-07. In the light of this history, we do not feel
free to find in the proviso a limitation not written there by
Congress. We are joined in this conclusion by the District
of Columbia Circuit in Donald Shriver, Inc. v. NLRB, su-
pra, slip op. at 52-5. We also note that prohibition of
**particular-union’’ subcontractor clauses would defeat at
least some of the interests that we earlier found to be served
by the construction industry proviso. One such interest is
that of a union in protecting the wages and benefits of its
members in the primary bargaining unit who may later work
for subcontractors. That concern is shared by no other union,
and is best served by a ‘‘particular-union’’ clause.
It is next contended, this time by Woelke, that even if
a subcontractor agreement is protected by the construction
industry proviso, it is an unfair labor practice for a union
to picket or strike in order to induce a contractor to enter
such an agreement. The legislative history of the 1959
amendments is in conflict on this point.*' The actual wording
of § 8(b)(4)(ii)(A), however, prohibits coercion of any per-
son ‘‘to enter into any agreement which is prohibited by
[$ 8(e)].’"” The negative implication of this provision is
“'Representative Barden, the Leader of the House conferees, referred
to the proviso as permitting *‘voluntary agreements.’’ 105 Cong. Rec.
18128; Il Leg. Hist. 1715.
Senator Kennedy, the leader of the Senate conferees, appeared to be
of the view that economic coercion was permissible, and stated that the
proviso was not intended to change the law ‘‘with respect to the legality
ho wg obtain such a contract.’’ 105 Cong. Rec. 17900, Il Leg.
ist. 1433.
Senator Goldwater, one of the Senate conferees, and the man who
may have been most responsible for the Landrum-Griffin Amendments,
see 105 = Rec. 15516, Il Leg. Hist. 1552 (statement of Rep.
Madden), said that the question was left open for the courts to decide.
105 Cong. Rec. 19772, Il Leg. Hist. 1858.
“(Emphasis supplied). Section 8(b)(4)(iiA) appears supra note 4.
gD ei
surely that picketing or striking to induce entry into an
agreement protected by the proviso to § 8(e) is lawful.
After the 1959 amendments, the Board originally took
the position that such agreements had to be voluntarily en-
tered, but its position was uniformly rejected by this and
other courts of appeals. Construction Production & Main-
tenance Laborers Union, Local 383 v. NLRB, (Colson &
Stevens Construction Co.) 323 F.2d 422 (9th Cir. 1963);
Orange Belt District Council of Painters No. 48 v. NLRB,
328 F.2d 534, 537 (D.C. Cir. 1964); Essex County and
Vicinity District Council of Carpenters and Millwrights v.
NLRB, 332 F.2d 636 (3d Cir. 1964). The Board subse-
quently acquiesced in the courts’ view. Northeastern In-
diana Building & Construction Council, 148 N.L.R.B. 854
(1964), remanded on other grounds, 352 F.2d 696 (D.C.
Cir. 1965). We see no reason to disturb the present law and
to read into the Act a limitation that runs counter to the
suggestion of its plain words. Nor do we accept the con-
tention that picketing or striking to obtain a subcontractor
agreement violates the § 7 rights of employees of subcon-
tractors; they are no more affected by a subcontractor agree-
ment achieved by picketing than by one voluntarily entered.
The final issue concerns the effect of the provision in the
AGC contract that permits each party to resort to self-help
when the other party does not comply with an arbitration
decision made pursuant to the grievance procedure.*? The
Board concluded that these provisions authorized picketing
or strikes to enforce the subcontractor agreement, and held
that the contract was consequently unlawful. The rule that
picketing or strikes may not be used to enforce subcontractor
agreements arises from the fact that the 1959 amendments
“See note 1, supra.
4? —
exempted the construction industry from § 8(e)’s prohibition
against secondary boycott agreements, but did not exempt
it from § 8(b)(4)(ii)(B), which forbids economic coercion
to enforce such a boycott. The legislative history makes
clear Congress’s intent that subcontractor clauses entered
pursuant to § 8(e) were to be enforced judicially rather than
by self-help,“ and this court has followed that view. NLRB
v. International Brotherhood of Electrical Workers, 405
F.2d 159, 163-64 9th Cir. 1968, cert. denied, 395 U.S.
921 (1969). We have also held that such clauses may be
enforced by arbitration. La Mirada Trucking, Inc. v. Team-
sters Local Union 166, 538 F.2d 286 (9th Cir. 1976).
Engineers argue, without pressing the point strongly, that
self-help to enforce an arbitration award that in turn enforces
a subcontractor agreement is not unlawful. The picketing
or strike, according to the Union, is simply enforcing the
arbitration award and not the underlying agreement. We
believe that acceptance of this contention would too easily
circumvent the clear intent of Congress and would do vio-
lence to the plain words of § 8(b)(4)(ii)(B). Nor can we
accept the suggestion of the Union that the AGC agreement
must be construed to limit the self-help clause to self-help
which is determined to be lawful. We must take the agree-
“The Conference Committee, after stating that it did not intend the
proviso to change existing law regarding subcontractor agreements,
stated: ‘‘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 (1958).’” H.R. Rep. No. 1147, 86th Cong., Ist
Sess. 39, I Leg. Hist. 943. See also, 105 ae oe 17900, Il mn
Hist. 1433 (remarks of Sen. Kennedy). Senator Goldwater subsequently
explained the proviso as follows: ‘*The union may go into a court and
sue [the contractor] if he fails to live up to that agreement. But they
cannot strike or picket him to make him live up to it. . . .”’ 105 Cong.
Rec. A8359, II Leg. Hist. 1830.
243—.
ment to mean what it says. Operating Engineers, Local No.
701 v. NLRB, 578 F.2d 841, 842 (9th Cir. 1978); Donald
Schriver, Inc. v. NLRB, supra, slip op. at 57-58.
VIL.
CONCLUSION.
We find that provisions in a collective bargaining agree-
ment forbidding the signatory employer to subcontract work
at a construction site to firms that do not have a contract
with the signatory union are within § 8(e) of the National
Labor Relations Act, but are protected by the construction
industry proviso to that section. They need not be limited
to jobsites presenting the possibility of conflict between
union and nonunion workers. We also find that unions may
picket or strike to induce employers to enter such agreements
but that, once entered, the agreement may not be enforced
by self-help. Clauses authorizing self-help enforcement,
directly or through arbitration decisions, are consequently
invalid. We accordingly enforce the orders of the Board in
their entirety.
wv Chast
Pacific Northwest Chapter of the Associated Builders
& Contractors, Inc., et al. v. NLRB, et al. - Nos. 78-3469,
78-3487, 78-3619, 78-3468, 79-7011
SNEED, Circuit Judge,(with whom CHOY, ANDER-
SON and FARRIS, Circuit Judges, concur) dissenting:
As with many legal issues, where one ends up in this
case depends upon were one starts. While I have no dis-
agreement with the court’s holding that union signatory
clauses are secondary and within the scope of section 8(e),
I respectfully dissent from its holding that such clauses are
invariably within the construction industry proviso to section
8(e) when a collective bargaining relationship exists be-
tween the employer and the union seeking the clause. The
majority reaches its conclusion by commencing with the
view that the construction industry presents unique problems
in labor relations that require the legitimation of union sig-
natory clauses. Although admitting that the legislative his-
tory is not compelling, the court finds that legitimation was
provided by the construction industry proviso. My starting
point, on the other hand, is with Connell Construction Co.
v. Plumbers & Steamfitters Local Union No. 100, 421 U.S.
616 (1975), and its concern with the *‘top-down organizing”’
effect of union signatory clauses. This concern led the panel
before which this case was heard originally to hold as
follows:
**We hold that the construction industry proviso ex-
tends shelter only when a collective bargaining rela-
tionship exists and even then only when the employer
or his subcontractor has employees who are members
of the signatory union at work at some time at the
jobsite at which the employer wishes to engage a non-
union subcontractor.’’ Pacific Northwest Chapter of
the Associated Builders & Contractors, Inc. v. NLRB,
609 F.2d 1341, 1347 (9th Cir. 1979).
ry” oe
I would adhere to that holding and to the reasons given by
the panel therefor. /d. at 1348-50.
The court rejects the panel’s result because it is said to
represent an ‘‘even narrower’’ view of the construction in-
dustry proviso than that adopted by the Supreme Court in
Connell. .... F.2d .... (p. 26 majority opinion). Alleviation
of ‘‘the frictions that may arise when union men work con-
tinuously alongside nonunion men on the same construction
site,’’ 421 U.S. at 630, is said not to have been a concern
of the Supreme Court in Connell because in that case ‘‘the
union did not purport to represent any of the interests served
by the proviso.’’ .... F.2d .... (p. 26). Presumably this is
because there was no collective bargaining agreement be-
tween the employer and union in that case.
As I see it, the crucial language in Connell is as follows:
‘*We therefore hold that this agreement, which is out-
side the context of a collective-bargaining relationship
and not restricted to a particular jobsite, but which
nonetheless obligates Connell to subcontract work only
to firms that have a contract with Local 100, may be
the basis of a federal antitrust suit because it has a
potential for restraining competition in the business
market in ways that would not follow naturally from
elimination of competition over wages and working
conditions.’’ 421 U.S. at 635.
This language, as the majority acknowledges, is not entirely
unambiguous. It is, however, not inconsistent with the
panel’s holding as set out above; and, more importantly,
that holding is more empathetic with Connell’s concern with
the ‘‘top-down’’ organizing effect of union signatory clauses
than is that of the majority.
It is true, as the majority states, that any union signatory
clause has some ‘‘top-down’’ organizing effect. The dif-
ference between the panel’s holding and that of the en banc
San
court lies in the scope of this effect. The en banc court
permits a clause that forbids subcontracting work covered
by the collective bargaining agreement to any firm not hav-
ing a contract with the signatory union. It matters not
whether any of the employees of the signatory employer,
who are members of the signatory union, are employed on
the jobsite. It matters not that, in the absence of the union
signatory clause, the work could have been subcontracted
to a firm which, even though adhering to union standards
governing wages and working conditions, was more effi-
cient than its competitors.
It must be acknowledged that the panel’s holding would
not greatly diminish the ‘‘top-down’’ organizing effect of
the union signatory clause. It would permit the choice of
the more efficient firm only when to do so would entail no
jobsite friction between members of the signatory union and
workers performing work covered by the collective
bargaining agreement. Thus, a provision in the agreement
precluding subcontracting of all the covered work would
prevent choice of the more efficient firm and thus provide
a substantial *‘top-down’’ organizing effect. A clause pro-
hibiting subcontracting is permissible. National Woodwork
Manufacturers Association v. NLRB, 386 U.S. 612, 644-
46 (1967); see also Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203 (1964); NLRB v. Johnson, 368 F.2d
549 (9th Cir. 1966). However, the panel’s holding would
afford an opportunity by which an employer could accept
a union signatory clause without sacrificing all right to
choose the more efficient subcontractor. Preservation of this
opportunity would be more consistent with the primary con-
cern of Connell than is the position of the en banc court.
I doubt that the en banc court seriously contends otherwise.
It does believe that the preservation of this opportunity
would provide a ‘‘strong incentive for anti-union discrim-
sO Vite
ination by employers.’’ .... F.2d .... (p. 29). I am dubious.
Under either view an anti-union employer will strive to
avoid a union signatory clause. That an employer under the
panel’s view would have a limited opportunity to subcon-
tract to a firm not having an agreement with the signatory
union is not likely to make it more anti-union.
I agree with the en banc court that the legislative history
of the construction industry proviso is not conclusive. We
have previously considered the legistlative history of the
proviso. ACCO Construction Equipment, Inc. v. NLRB, 511
F.2d 848, 851 (9th Cir. 1975). In surveying the legislative
history, we conclude that the dominant motive of Congress
in adopting the proviso was to permit agreements that aimed
at eliminating jobsite friction between union and nonunion
workers. /d. at 851; accord, Drivers Local 695 v. NLRB,
361 F.2d 547, 553 (D.C. Cir. 1966); Essex County District
Council of Carpenters v. NLRB, 332 F.2d 636, 640 (3d
Cir. 1964). And the National Labor Relations Board
previously believed: ‘‘[T]he 8(e) proviso was intended to
prevent labor strife among nonunion and union employees
at the same jobsite.’’ International Union of Operating En-
gineers, Locals 542, 542-A and 542-B, 216 N.L.R.B. 408,
409 (1975), enforced, 532 F.2d 902 (3d Cir. 1976), cert.
denied, 429 U.S. 1072 (1977). I see no reason to depart
from our earlier analysis of the purpose of the proviso.
Admittedly, Senator Kennedy thought that the construc-
tion industry proviso would permit subcontracting clauses
such as those challenged in these cases. Others argued that
the proviso was intended to permit agreements not to use
prefabricated pipe unless union workers did the fabricating.
105 Cong. Rec. 19785-86, 19809 (1959); II Leg. Hist.
1815-16 (extension of remarks of Senator McNamara and
Representative Thompson); contra 105 Cong. Rec. 20004-
05 (1959); II Leg. Hist. 1861 (extension remarks of Rep-
eT ae
resentative Kearns). But neither of these purposes were
clearly understood as the reason for the proviso. As Connell
and ACCO concluded, the legislative history supports the
conclusion that most congressman thought the proviso was
intended to address the problem of jobsite friction. See,
e.g., | Leg. Hist. 82 (message from President Eisenhower
to Congress); 105 Cong. Rec. 15852, II Leg. Hist 1684
(statem nt of Congressman Goodell); 105 Cong. Rec.
17333-34, II Leg. Hist. 1383-84 (proposed instructions for
Senate conferees). Also, as I read the excerpt from the
memorandum by Representatives Thompson and Udall
quoted by the en banc court, it too strongly supports the
conclusion that the proviso was aimed at the jobsite friction
problem. The references to employees working ‘‘side by
side’’ on a ‘‘single building’’ so indicate. 105 Cong. Rec.
15541 (1959); II Leg. Hist. 1577.
The en banc court notes that some subcontractor clauses
similar to those challenged in these cases existed in 1959.
Since they conclude that the Congress intended to preserve
the law relating to the construction industry as it then ex-
isted, the court argues that Congress intended that the pro-
viso would protect broad subcontractor clauses. I believe
this reasoning gives far too much weight to the bare ref-
erence to the pattern of collective bargaining referred to in
the Committee Report. See Connell, supra, 421 U.S. at
628-29. Furthermore, the lawfulness and permissible scope
of subcontractor agreements had not been conclusively de-
termined in 1959. And the proviso clearly changed the law
by explicitly limiting its protection to jobsite work. That
limitation at least partially overruled the Sand Door case,
Local 1976, United Brotherhood of Carpenters v. NLRB,
357 U.S. 93 (1958). Thus the most that can be said is that
Congress intended to preserve the existing law within the
scope of the proviso. That proposition, however, begs rather
—49—
than answers the question of what the proper scope of the
proviso is. That is what this case is about. Our decision,
whatever it is, can draw but little comfort from the legis-
lative history.
The majority also argues that practical considerations fa-
vor the result they reach. But the practical problems of
following the panel’s decision would not have been severe.
If broad subcontractor clauses are approved, unions must
still police construction sites to ensure compliance. No more
is required by a rule limiting subcontractor clauses to jobsites
at which members of the signatory union are employed. The
serious practical problems raised by the majority would arise
only ‘f subcontractor clauses were required to be renego-
tiated on a jobsite by jobsite basis, but that would not be
required by the panel's interpretation of tiie proviso.
Thus, we come to the nub of the matter. Which inter-
pretation of the proviso is more faithful to curbing
**top-down’’ organizing, which, it must be remembered,
was Congress’s objective in adopting the 1959 Act which
included section 8(e). Connell, supra, 421 U.S. at 632-33.
The holding of the panel gets my nod.'
"Because the panel concluded that the broad subcontractor clause in
the AGC supra violated section 8(e), it did not address the law-
fulness of the agreement's self-help enforcement provision. 609 F.2d
at 1351. I agree with the majority of this en banc court that the self-
help enforcement provision must be interpreted to mean what it says
that Congress clearly intended that subcontractor clauses were to
be enforced judicially rather than by strikes or picketing. Therefore, |
agree that the self-help clause in the AGC contract is invalid.
a
Pacific Northwest Chapter of the Associated Builders
& Contractors, Inc., et al. v. NLRB, et al. — Nos. 78-
3469, 78-3619, 78-3468, 79-7011.
FARRIS, Circuit Judge, with whom Judge Choy and
Judge Anderson 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 sig-
natory general contractors from subcontracting any work
covered by the agreement at any construction site to non-
signatory 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. . . .’’ /d. 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 (1975), the Supreme Court concluded that the
construction industry proviso did not authorize a construc-
tion industry employer and a union not representing its em-
ployees to agree to limit the employer’s right to subcontract.
Finding no congressional 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.’’ Jd. at 633.
ite 8 cies
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 em-
ployer’s subcontracting at the jobsite where it employs the
union’s members. The majority asserts that another pur-
pose—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, No. 78-2177, slip op. at 43-
47 & n.29 (D.C. Cir. Oct. 20, 1980). I agree that a con-
gressional 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 repre-
sented 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 in-
dustry 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 stan-
dards. 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 in-
dustr
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