# Petition — Woelke & Romero Framing, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2035%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 456 U.S. 645 ## Text 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 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 analy [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2035%3A01. Public record. Not legal advice.