# Amicus Curiae Brief — NLRB v. Sears, Roebuck & Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0402%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 132 ## Text AEP PAL PANT (hoe Ye AL ey Qe SO et 81 % Meo FT MP ETRE ¥ en CO alnuie emake 5 Palais el iat tae ata Sit RDA AEE ol TED IW ha SUPREME COURT, Us BT: i iooaanae IN THE Supreme Court of the Gnited States OCTOBER TERM, 1973 No. 73-1233 rr NATIONAL LABOR RELATIONS BOARD AnD PETER G. NASH, GENERAL COUNSEL, Petitioners, VS. SEARS, ROEBUCK AND CO., Respondent. ON: WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF ON BEHALF OF THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, AS AMICUS CURIAE, IN SUPPORT OF RESPONDENT . ——_—_—————— MILTON SMITH General Counsel RICHARD BERMAN Labor Relations Counsel Chamber of Commerce of the JERRY KRONENBERG United States of America JULIAN D. SCHREIBER 1615 ‘iH Street, N.W. HOWARB L. MOCERF Washington, D.C. 20006 120 South LaSalle Street Chicago, Illinois 60603 Of Counsel: Attorneys for Amicus Curiae. BOROVSKY, EHRLICH & KRONENBERG 120 South LaSalle Street Chicago, Illinois 60603 Gunthorp-Warren Printing Company, Chicago @ 346-1717 TABLE OF CONTENTS PAGE Interest of the Amicus Curiae... . 75 F. Supp. 7 1. Douds v. Metropolitan Fede 672, 677. 2. See the opinion of Judge Fahy below, 87 U.S. App. D.C. 293, 186 F.2d 326; and the dissenting opinion of Judge Clark, International brotherhood v. N.L.R.B., 181 F.2d 34, 40. . It seems clear from the foregoing, even before proceeding to consideration of the relevant Board decisions from Centlivre to the present, that the construction industry proviso has been rec- ognized as privileging what may be characterized as “Denver Building Agreements” confined to the site of construction. That is, while the Supreme Court decision in Denver Building was not overruled,’® agreements covering Denver Building relation- 10. That Denver Building was not “overruled” by the Supreme Court’s decisions in General Electric, 366 U.S. 667, and Carrier, 376 U.S. 492, is fully set-forth in the Board’s decision in Markwell and Hartz. 155 NLRB 319, enfd. 387 F.2d 79 (C.A. 5); see aiso 383 F. 2d 562 (C.A. 6). Markwell and Hartz, however, gives no support to the contentions of the Charging Party concerning construction in- dustry on-site agreements. EEOC Be La YONA ROE COLD 6 SOA NIIABEI aS" Ste PTI Satire te A9 ships at a construction site were exempted from the prohibition of Section 8(e).™ In sum then, since the construction industry proviso deals with “secondary” agreements, the “community of interest” involved is not tied to gS of “unit work a. but rather to baled: on - this interest poate pr mt serena ‘diere which, being “secondary” would otherwise and elsewhere be prohibited. The legislative history supports this view. As pointed out by the Board in Centlivre at footnote 17: “The intent of Congress to retain the then existing law in, connection with secondary boycotts in the construction’ industry is apparent from the following statement by the House conferees: “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 re- move the limitations which the present law imposes with respect to such agreements. Picketing to enforce such contracts would be illegal under the Sand Door cases (Local 1976, United Brotherhood of Carpenters (and Joiners of America, AFL, et al. (Sand Door & Plywood Co.)) v. N.L.R.B., 357 U.S. 93 (1958)).. To the extent that such agreements are legal today under Section 8(b)(4) of the National Labor Relations Act, as amended, the proviso would prevent such legality from being affected by Section 8(e). The pro- RUMI oy 2 PPT GRE eR ERENT OR 11. Denver Building itsclf points away from the Charging Parties’ contentions. Thus it appears that the neutral general contractor there, Doose and Lintner, did not employ electricians but, rather, sub- contracted electrical work to the primary nonunion electrical contrac- tor, Gould and Preisner. Indeed the Supreme Court, in rejecting the Union’s contention that it had a primary dispute with Doose and Lintner in seeking to force Doose and Lintner to make the project an all-union job, pointed out that “If. for example, Doose and Lintner had been doing all the electrical work on this project through its own nonunion employees, it could have replaced them with union men and thus dispose of the dispute.” (At p. 688.) SEARS PENNE tg CIN a eR RII Al0 viso applies only to Section 8(e) and therefore leaves unaffected the law developed under Section 8(b) (4). The Denver Building Trades case and the Moore Drydock cases would remain in full force and effect. The proviso is not intended to limit, change, or mod- ing at the site of a construction project. Restrictions and limitations imposed upon such picketing under present law as interpreted, for example, in the U.S. Supreme Court decision in the Denver Building Trades case would remain in full force and effect. . House Conference Report on Labor-Management Re- porting and Disclosure Act of 1959, House Report 1147, 86th Cong., Ist sessions, pp. 39-40.” (Empha- sis supplied with respect to portions bearing on “agreements.” ) This is supported further by the statements of Senators Ken- nedy and Goldwater in the legislative history. Senator Kennedy explained the 1959 amendments as follows: “The first proviso under new section 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 yalidity of agreements relating to the contracting of work to be done at the site of a construction project. “This proviso affects only section 8(e) and therefore leaves unaffected the law developed under section 8(b) (4). The Denver Building Trades (341 U.S. 675) and the Moore Drydock (92 N.L.R.B. 547) cases would remain in force. “Agreements by which a contractor in the construction industry promises not to subcontract work on a construc- tion site to a nonunion contractor appear to be legal today. They will not be unlawful under section 8(e). The proviso is also applicable to all other agreements involving under- takings not to do work on a construction project site with other contractors or subcontractors regardless of the precise relation between them.’* Since the proviso does not relate : at Relied on by the Board in Carvel, 152 NLRB 1672, discussed elow. All to section 8(b) (4), strikes and picketing to enforce the contracts excepted by the proviso will continue to be illegal under section 8(b)(4) whenever the Sand Door case (357 U.S. 93) is applicable. “It is not intended to change the law with respect to the judicial enforcement of these contracts; or with respect to the legality of a strike to obtain such a contract. “It should be particularly noted that the proviso relates only to ‘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. [II Leg. Hist. Act of 1959, 1433(3).]” (Emphasis supplied. ) And Senator Goldwater stated: “There is a further exemption from the prohibitions against ‘hot cargo’ agreements only, under section 8(e), with respect to a segmetnt of the building construction industry and the labor unions representing employees in that segment of the inaustry. This exemption is granted only where the employer with whom such an agreement is signed is in the construction industry and engages only in construction work at the site; it does not apply where the employer, although in the construction industry, is.not engaged in construction work at the site such as enterprises primarily engaged in supplying or transporting building construction materials. Where an employer falls into this limited category, it is not an unfair labor practice for such employer and a labor union to enter into an agreement whereby such employer ceases or refrains or agrees to cease or refrain from handl- ing, using, selling, transporting or otherwise dealing in any of the products of another employer, or to cease doing business with any other person, and such an agreement is not per se unlawful. Unlike the exemption for the apparel and clothing industry, the prohibitions of the secondary boycott ban in seétion 8(b) (4), as amended, are however, . applicable to these situations. , “Thus, although employers and unions who are under this exemption may lawfully enter into such agreements, and ae | wy FEIN RAT Se, te , SPO Keer ee So 2 RASTA RIS PROP RE PEs ite ete ay FAIR ae groggns de RR ea Sa wey Al2 may resort to the courts for their enforcement under ap- » plicable principles of contract law, no coercion or restraint —economic or otherwise—may be used by any party to such an agreement, even if entered into voluntarily by both parties, to compel the other party to live up to the contract anise niceneioeemennenlil i, etree Soom beesichine it" “iil Leg. Hist, (1959) 1858(1)] (Emphasis supplied. ) Turning now to consideration of relevant Board law from 4 Centlivre to the present, the Board decisions provide no sup- port, but rather undercut, the contentions of the, Charging ' Parties.'’ In Centlivre itself, the Board, in accepting the view of ly the Circuit Courts which had “uniformly rejected” the prior Board view, stated: “in essence these [Court] cases hold that the Board failed to give sufficient scope to the construction pro- viso to Section 8(e).” The Board then treated the clauses there - involved as within the construction industry proviso to Section 3 8(e)."* And the facts of Centlivre run contrary to the conten- 1 tions of the Charging Party here. The Respondent Unions there 2 included a Construction Trades Council and affiliated locals, including Painters, Laborers, Carpenters, Plumbers, Sheet Metal Workers, Iron Workers, and Electrical Workers. Also Re- spondent was a Bricklayers Local. The Respondent Unions 13. Building Material & Construction Teamsters Union Local No. . 216 (Bigge Drayage Co.), 198 NLRB No. 130, and General Team- ; sters Local 386 (Constriiction Materials Trucking, Inc.), 198 NLRB No. 129, cited on appeal for the proposition that such agreements . are secondary in nature and therefore illegal, are not in point because 7 they do not relate to on-site work. 14. The Board in footnote 11 of its decision stated: “Neither the General Counsel nor the Charging Party disputes the proviso’s application to the clauses in question. Accordingly, there being no issue before us as to the validity of such clauses, we assume, for purposes of this case, that they are within the proviso and lawful, There is no indication, however, that this reservation had any rela- 2 tionship to the factors argues for by the Charging Party in the instant case. (See discussion of Colson and Stevens below.) Rather. it ap- pears that the reservation is related to “sclf-help” issues decided shortly thereafter by the Board in Muskegon, 152 NLRB 360, since _ the clauses in Centlivre did contain “self- help” provisions. See Centlivre, supra, at p. 861. Piiaoite teins Al3 * sought from Centlivre, a general contractor, the “secondary” clauses set forth on p. 861 of the Board decision. These agree- ments would have required of Centlivre that ~nly signatories to a contract with Respondent Unions would be permitted to work on the construction site.’” As set out in the Trial Examiner's decision: '” “As general contractor, Centlivre itself employed 6 to 9 laborers, carpenters, and cement finishers. It subcontracted particular craft operations to various firms in the Ft. Wayne area.” Centlivre had no collective-bargaining contract or relationship with the Respondent Unions. And since Centlivre employed only laborers, carpenters and cement finishers, the subcontracting agreement restrictions would have applied to work of a kind ' Centlivre’s own employees did not perform. Thus it is entirely clear that the elements contended for by the Charging Parties in the instant cases as determinative for the validity of an on-site agreement under the construction industry proviso were absent in Centlivre and the Board, nevertheless, treated the clauses as within the construction industry proviso. Significant too is the fact that in Colson and Stevens itself (where the facts were very like those in the instant case) the factors the Charging Parties here contend to be preconditions to proviso validity did not exist. That is, Colson had no col- lective-bargaining agreement or relationship with the Unions there involved and -the subcontracting agreement sought covered work which employees of Colson did not perform. Thus the Unions there (Carpenters and Laborers) sought to compel Colson to grant recognition covering carpenters whom he did employ. But the Unions also sought an agreement with secondary subcontracting restrictions concerning any work Colson sub- contracted and not confined to carpentry work.'’ The Board, based on its pre-Centlivre view that only voluntary agreements 15. Supra, p. 856 and fn. 13. 16. Supra, p. 859. 17. See Colson, supra, at p. 1650 and 1651, and fn. 1. % ) i SENET RI SR rnp ree or eee Al4 were within the construction industry proviso to Section 8(e), found a violation on that basis. There is no scintilla of sugges- - tion in the Board's decision that, had the subcontracting agree- ment sought by the Unions been “voluntarily” entered into, the Board might nevertheless have viewed the agreement as out- side the construction industry proviso. So the underlying relevant facts of Colson and Stevens, just as in Centlivre, are at odds with the contentions of the Charging Parties here. The Board’s holding in Church’s Fried Chicken, 183 NLRB No. 102, on the facts there, is also directly contrary to the con- tentions of the Charging Parties. While finding a violation of Section 8(b)(7)(C) of the Act, the Board, upon exceptions filed, affirmed the dismissal of the 8(b) (4) (A) and «B) al- legations of the complaint. This was based on the Trial Ex- aminer’s full discussion of the Section 8(b) (4) issues. Thus the Trial Examiner pointed out that a violation of Section 8(b)(4)(A) would require a finding that the Union was at- tempting to have Church sign an agreement violative of Sec- tion 8(c). And this entailed a determination whether Church was “an employer in the construction industry.” Upon con- cluding, after discussion of the legislative history, that Church was Such an employer, the Trial Examiner found that the agree- ment which the Union sought would not have been violative of Section 8(e) because of the construction industry proviso, and in consequence, no violation of 8(b)(4)(A) could be found. As _ pointed out by the Trial Examiner “Church, instead of employ- } ing a general contractor, acted as its own prime contractor : through . . . its construction superintendent.” \It is clear that Church had no collective-bargaining agreement or collective- bargaining relationship with the Respondent Building Trades Council, nor did Church directly employ employees of. the crafts which might be represented by affiliates of the Respondent Building Trades Council.’* The holding in Church’s Fried Chicken then also negates the Charging Party’s contention. 18. With the possible exception of a laborer. See p. 3 of Trial Examiner's Decision. Al5 The Board’s post-Centlivre decisions giving broad scope to the proviso also militate against the Charging Parties arguments. Thus in Muskegon, 152 NLRB 360, the Board considered the validity under Section 8(e) of the following: clause: “It is agreed that the members of Bricklayers Local Union No. 5 may refuse to work on any job where any of the work, irrespective of craft, is performed, has been per- formed, or is to be performed by craftsmen who enjoy less favorable wages and working conditions than is pro- vided in the current collective-bargaining agreement be- tween the equivalent Muskegon County Building Trades Local Union and its contracting employers. Such refusal shall not be grounds for discharge or other disciplinary action, but shall be regarded as a failure of the employer to provide suitable work.” (Emphasis supplied.) As emphasized in the Board decision itself, the clause per- mitted a strike by members of the Bricklayers Union where any of the work irrespective of craft, is, has, or is to be performed by craftsmen who enjoy less favorable wages and working conditions than is provided in the current collective- bargaining agreement between the equivalent Building Trades Union and its contracting employers. The Board, in a detailed discussion, held the clause to be within the ambit of Section 8(e) and beyond the construction industry exemption solely because of the self-help feature which the clause contained.'® Thus the agreement between the Bricklayers and Muskegon, «apart from its “self-help” features, was viewed as valid under the proviso, though it was applicable “irrespective of craft” and was conditioned on the “wages and working conditions . . . in the collective bargaining agreement between the equivalent . . . Locai Union and its contracting employers.” 19. This is made clear in the decision itself and, particularly footnote 13, where the Board rejected the General Counsel’s con- tention based on Colson and Stevens, 137 NLRB 1650. The Board, citing Cenilivre, noted that it had: “recently reversed Colson and Stevens and now holds that picket- ing to obiain a contract clavse which is within the construction industry proviso to Section 8(e) does not violate Section 8(b) (4) (A). a a | PO i seri Mea teeny Al6 Then in Carvel, 152 NLRB 1672, the Board considered the validity of the following clause: “The Employer [Carvel] agrees that no journeyman or apprentice who is a member of Local 217. . . will be assigned to work or expected to work or required to work, on any job or project on which a worker or person, is performing any work within the jurisdiction of Local No. 217, if said worker or person is performing such work for wages, hours or under any conditions of employment, which are different from those established by this agree- ment.” (Emphasis supplied. ) While again finding, as in Muskegon, that the clause was unprivileged because of its “self enforcement provisions”, the Board clearly viewed the clause as otherwise within the construc- tion industry exemption. The Board specifically rejected the contention there made that the proviso was inapplicable be- cause the contract provision did not refer to the “contracting out” or “subcontracting” of unit work and affected persons and employers with whom Carvel had no contractual relationship.” The Board stated: . “. , . the application of the proviso does not, in our view, dependfon the precise relationship between Carvel with whom the Union has a contract and other employers and persons on the job, in this instance the general contractor and Ballard, who may be affected by the enforcement of the contractual proviso. The language of the proviso itself does not limit its applicability to the ‘contracting out’ or _ ‘subcontracting’ of work by the employer with whom a union has an agreement within the scope of Section 8(e). Indeed, were the proviso given such a limited applicability, it would be of little effect, for aside from the general con- tractor on a job, the various firms involved normally have control only of ‘unit’ work—that is, the particular work for which they hold a subcontract. Restrictions on the right to subcontract such work could well be primary, and thus lawful without reference to the construction industry proviso, because they are wholly outside the scope of ~8(e).” (At p. 1676.) 20. At p. 1677 and fn. 8. Al7 Thhe Board decision in Ets-Hokin, 154 NLRB 839, followed as rexcently as Baltimore Contractors, 190 NLRB 415, also re- flect the breadth given to the construction industry proviso ex- cept where “self-help” provisions are included in the agreement. In Eits-Hokin, the clause at issue provided: “The Local Unions are part of the International Brother- hood of Electrical Workers and any violation or annul- ment of working rules or agreements of any other Local Union of the IBEW, or the subletting, assigning, or transfer of any work in connection with electrical work to any person, firm or corporation not recognizing the IBEW as the collective-bargaining representative on any electrical work in the jurisdiction of this or any other such Local Union by the Employer, will be sufficient cause for the cancellation of this agreement, after the facts have been determined by the International Office of the Union. Tlhe Board in Ets-Hokin and in subsequent cases collected in Btaltimore Contractors, supra, treated such a clause as within the «construction industry proviso. Thus, the Board decisions since Centlivre have either held or viewed the construction industry proviso as privileging what may, be characterized as Denver Building on-site agreements despite the absence of the factors which the Charging Parties heres contend are required conditions of proviso exemption, whesre the facts were not at odds with those of the Charging Partties’ cases. And the full scope given to the proviso in such decijsions points directly away from the Charging Parties’ con- tenttions. Aknd if, as the Board has held in cases discussed above, the exeimption applies where the “agreeing” employer has no em- ployees of the kind or craft involved,?" there is no reason to 2(0a. As a matter of fact the Board has held, with court approval, that: a “person” can violate 8(e) by entering into a proscribed agree- memt with a labor organization /nternational Association of Machinists & Ajerospace Workers, AFL-CIO (Lufthansa German Airlines), 197 NLIRB No. 18, enfd. 85 LRRM 2257 (C.A. 9 January 9, 1974). Thus, if a person who employs no one can violate 8(e) it would be m4 FE RO SRILE TN REE ON a LSE | Pegs Als attach significance to whether the agreement is in a “collective- bargaining contract” or whether there is a “collective-bargain- ing relationship” between the union and employer (for instance, the general contractor) party to the agreement. Since any such “collective bargaining contract” would not fix general terms and conditions of employment for any of the employer’s own employees, no independent significance appears with respect to this contention of the Charging Parties. The Court decision in Connell, supra, involving issues under the anti-trust laws, has also been carefully and fully considered in light of the foregoing discussion based on cases arising un- der the Act itself. With the fullest respect to the Court, we see no basis for relying on the dictum of the majority view and the discussion in the minority opinion of Connell which would warrant rejection of the foregoing discussion and analysis. Thus the Court in Connell was apparently of the view that the ab- sence of a “collective bargaining relationship” would preclude a finding that the construction industry exemption to Section 8(e¢) might operate. And the Court apparently believed that this question has not been considered by the Board and Courts. But these arguments*' (the absence of a representable class of employees and its variant—the absence of a —collective- bargaining relationship) are essentially indistinguishable from those rejected by the Board and Courts in the past. Thus, in addition to the above discussion, it should be noted that the absence of an employment relationship theory was directly axiomatic that such a person could enter into a privileged 8(e) proviso agreement absent a showing that Congress intended the proviso to be narrower in coverage than the prohibition to which it is an exception. 21. The Charging Parties here argue that the fundamental repre- sentation concepts and policies reflected in Section 9(a) and 8(b) (7), when read in conjunction with the exception expressly created in 8(f), are undermined by permitting picketing for subcontracting agreements of employers who do not employ workers in the craft represented by such unions. See footnote 6 above and the discussion below concern- ing the “equities” position in‘the dissenting opinion of Connell. Al9 before the Court in San Bernadino.” There, in supporting its argument that the agreement sought had an unlawful secondary effect, the Board offered the following analysis: “In the context presented in this case, where the sub- contractor clause is sought to be imposed upon a general contractor for whom subcontracting is the »ormal mode of carrying on his enterprise . . . the terms of Article I-F and its uniform interpretation by the Union snow [that] the clause amounts to a commitment by the signafory employer to use only AFL-CIO subcontractors, and, ac- cordingly, to boycott another employer for reasons not strictly germane to the economic integrity of the principal work: unit. “Indeed, Article I-F limits the category of permitted sub- contractors even in those crafts which, by hypothesis, the signatory employer does not himself employ. The record contains no evidence as to the number of [the prime con- tractor’s] employees, if any, nor as to their craft or trade. - But it is improbable that . . . a small contractor, actually hires members of the entire range of trades represented in home construction; even the largest general Contractors tend to employ only presons in the basic trades, subcon- tracting the specialty work. Article I-F, however, makes no distinction according to whether or not a subcontractor could be ‘competing’: with the signatory employer's own employees. Thereby it reveals its purpose to cause a boy- cott of ‘nonunion’ (i.e., non-AFL-CIO subcontractors.” (Board brief in San Bernadino, pp. 41, 42, citations omitted. Emphasis supplied.) The D. C. Circuit Court was not persuaded, rejecting, sub silento, the absence of a “collective-l yrgaining relationship” between the picketing Council and picketed employer as a basis for finding subcontracting agreesaents unprotected by the build- _ing and construction proviso to 8(e). And in Colson and Stevens,”* in the Ninth Circuit Court of 22. Bui ‘Ilding and | Construction Trades C. ouncil of San Bernadino and Riverside Counties, et al. v. N.L.R.B., 328 F.2d 540 (D.C. C.A., 1964). 23. Construction Production & Maintenance Laborers Union, Local 383, AFL-CIO and United Brotherhood of Carpenters and ee ae | see ee A20 Appeals, the Board relied upon the context of requirements under Section 8(b)(3) and 8(d) of the Act. Thus, in describ- ing the “secondary subcontractor clause” in issue, the Board briefly characterized it as a “regulation of third party relation- ship extrinsic to the employment relationship” and therefore as involving a non-mandatory bargaining subject which the unions could not strike to obtain (Board’s brief at p. 26). With respect to the dissenting opinion in Connell, Judge Clark presented two approaches to the Section 8(e) on-site proviso, one based on equitable considerations and the other based on his view of the legislative history. The legislative history of the construction industry proviso and its interpretation in cases arising under the Act is dealt with at length earfier. It is not repeated here. As for the dis- senting Judge’s views concerning “one shot” agreements and the pattern of bargaining in the construction industry prior to enactment of the 1959 amendments to the Act, the Board’s brief in Colson and Stevens, supra, is enlightening. There, in discussing the construction industry practice legitimized by the proviso, the brief states: “As was pointed out in a 1950 study of building trades bargaining in the 12 counties of southern California, where a master agreement establishing basic employment stand- ards has been in effect since 1941 in which 19 building trades unions participate together with the 10 building trades councils and the major contractors’ associations, ‘for the well-established employers, it is also important to have a floor under competitive labor costs.’ The struc- ture of the industry, with. subcontracting a customary way of doing business, leads.employers to favor subcontracting clauses as a means of undergirding such a ‘floor.’ The Southern California master labor agreement referred to above contains such a clause, similar to the clause that the petitioner Unions sought to force upon Colson, as a result of which ‘any. subcontractor [of a signatory con- Joiners of America, Local 1089, AFL-CIO v. N.L.R.B., (Colson and Stevens Construction Co.), 323 F.2d 422 (C.A. 9, 1963). A21 tractor] who attempts to depart from the established union standards’ faces cancellation of his contracts and an im- mediate loss of business.’ On the other hand, if the con- tractor is unwilling in [these] circumstances to cancel the contract, or if he lets a subcontract to one who refuses to become bound by the master labor agreement, then the signatory contractor faces suit by the unions for specific performances with an interruption of work on his project occasioned by a change of subcontractors, and perhaps a damage suit by the ousted subcontractor. The bargaining pattern, with these effects, Congress believed legitimate and left lawful. . . .” (Board’s Colson and Stevens brief, pp. 19-21.) This is particularly significant when it is realized that organ- izing in the building and construction industry both prior to and subsequent to the 1959 amendments, was and is primarily carried on by building and construction trades councils on be- half of their constituent craft locals. The building trades agree- ments proffered are not conventional collective-bargaining agreements, nor is a conventional collective-bargaining rela- tionship sought, but rather an attempt is made to obtain skeleton agreements (containing little more than subcontracting provi- sions) which in turn are augmented by the execution of collec- tive-bargaining agreements by the individual trade unions, the latter agreements containing provisions governing wages and other substantive conditions of employment. As the Court ob- served in Dallas Building and Construction Trades Council v. N.L.R.B., 396 F. 2d 677 (C.A. D.C.), at p. 682: “. . . Congress intended by means of Section 8(e) to pre- serve the Status quo of bargaining in the construction in- dustry; and in 1959 ‘umbrella’ agreements like the one proposed here were, as they are today, commonplace, for collective-bargaining is traditionally conducted at several levels in the construction industry. .. .” 24. The text of a typical building and construction trades coun- cil agreement is set forth in detail in Dallas Building and Construction Trades Council, 164 NLRB 9339. fn. 2 at p. 940. A22 Under this arrangement the building and trades council is as much as a “stranger” to the general contractor and his em- ployees, if any, as the Plumbers Union was to Connell. The subcontracting clause encased in such a trades council “shell” agreement can no more be said to be obtained in the context of a collective-bargaining relationship than the proviso agree- ment sought or obtained in such cases as Colson and Stevens, supra, Centlivre, supra, and Church’s Fried Chicken, supra. As for the “equities” raised in the dissenting opinion, they have been substantially dealt with by the Board and Courts in cases under Section 8(b)(7) of the Act. Thus, the Board and Court in Dallas General, supra, have pointed out the absence of any inconsistency between ‘the Board’s interpretation of Sec- tion 8(b)(4) and the purposes of Section 8(e). The Court in Dallas General pointed out that “Sections 8(b)(7) and 8(e) are aimed at wholly different problems.” Thus, the cases make - clear that while considerations involving Section 9(a) selection of a bargaining representative may be directly related to Section 8(b)(7) of the Act,” such considerations are unrelated to “secondary” agreement issues under Section 8(e). In view of all the foregoing, including Supreme Court and Circuit Court decisions, relevant legislative history and the Board’s post-Centlivre decision, we find the contentions of the Charging Parties to provide no basis to establish under current Board law, violations of either Section 8(e) or 8(b)(4) (A) of the Act. /s/ PETER G. NASH Peter G. Nash General Counsel 25. See, e.g., in addition to Dallas General, supra, Lane-Coos- Curryv-Douglas Counties Building and Construction Trades Council, AFL-CIO, 168 NLRB 538, enf. 415 F.2d 656 (C.A. 9); Los Angeles Building and Construction Trades Council, et al. (Lively Construc- tion Co.), 170 NLRB 1499; Church’s Fried Chicken, supra; and Construction Trades Council of Philadelphia and Vicinity (Samuel E. Long, Inc.), 201 NLRB No. 42, enfd. 485 F.2d 680 (C.A. 3, 1973). amas Dey @ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0402%3A08. Public record. Not legal advice.