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Abrahamson Chrysler Plymouth, Inc. v. N.L.R.B., 91 LRRM 2343 (D.C. Ill.)
N.L.R.B., 409 F.Supp. 133 (D.C. Ind.)
F.Supp. 971 (D.C.Calif.)
N.L.R.B., 407 F.Supp. 208 (D.C.Colo.)
North America, AFL–CIO, et al.; Sidney Danielson, Reg. Dir. v., 411 F.Supp.
F.Supp. 454 (D.C.Mass.)
Local Union No. 75, AFL-CIO; Price, RD v., 90 LRRM 2845 (D.C. Ariz.)..
AFL-CIO v. N.L.R.B., 91 LRRM 2557 (D.C.Ky.)
Inc.); William C. Humphrey, Reg. Dir. v., 401 F.Supp. 1401 (D.C. Va.)
Workers Association, AFL-C10 v. N.L.R.B., 408 F.Supp. 520 (D.C. Penn.)
Workers Local Union No. 75, AFL—CIO, 90 LRRM 2845 (D.C. Ariz.)
N.L.R.B., 408 F. Supp. 937 (D.C.Ohio)
CIO; Wilford W. Johansen, Reg. Dir. V., 90 LRRM 2577 (D.C.Calif.)
389 888 216 1208
895 1003 1086
331 934 929 838
Temple-Eastex, Incorporated v. N.L.R.B., 410 F.Supp. 183 (D.C.Tex.)
Company, a Subsidiary of Title Insurance Company, and Trust Company a
(M. Salvin & Sons, Ltd.); Sidney Danielson, Reg. Dir. v., 91 LRRM 2069 (D.C.N.Y.)
Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local Union No. 638 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO v. N.L.R.B.
521 F.2d 885 (C.A.D.C.), July 1, 1975—204 NLRB 760
On petition to review Board Order
Before BAZELON, Chief Judge, and WRIGHT, MCGOWAN, TAMM, LEVENTHAL, ROBINSON, MACKINNON, ROBB and
WILKEY, Circuit Judges, sitting en banc Opinion for the court filed by Circuit Judge J. SKELLY
WRIGHT Concurring opinion filed by Chief Judge BAZELON. Dissenting opinion, in which Circuit Judges TAMM, ROBB,
and WILKEY join, filed by Circuit Judge MACKINNON
J. SKELLY WRIGHT, C.J.: We are required by this case to review once again the National Labor Relations Board's "right to control” test for determining whether a union has engaged in secondary activity proscribed by Section 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. $ 158(b)(4)(B) (1970).The Board found that the petitioner union, Enterprise Association, had violated Section
Section 8(bX4)(B), 29 U.S.C. $ 158(b)(4)(B) (1970), provides:
*44Xi) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, 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
"B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketingl.)"
521 F.2d 885 (C.A.D.C.) 8(b)(4)(B) by directing member steamfitters to refuse to comply with their employer's instruction to install prefabricated climate control units. Although the Board specifically determined that the refusal "was for the purpose of preserving work [the steamfitters] had traditionally performed,” the Board nevertheless held it to be secondary activity because the steamfitters' employer did not have the legal right to control assignment of the work which the union was attempting to preserve.
We have held in two previous decisions, Local 742, Carpenters v. N.L.R.B., 144 U.S. App.D.C. 20, 444 F.2d 895, cert. denied, 404 U.S. 986, 92 S.Ct. 447, 30 L.Ed.2d 371 (1971), and Local 636, Plumbers & Pipefitters v. N.L.R.B., 139 U.S.App.D.C. 165, 430 F.2d 906 (1970), that the right to control test misconstrues Section 8(b)(4)(B) as interpreted by the Supreme Court in National Woodwork Manufacturers Assn. v. N.L.R.B., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). Despite the fact that at least four of our sister circuits have similarly rejected the Board's positions the Board has nevertheless stead
889 fastly persisted in applying its test. The Board's recent attempt to provide an acceptable rationale for its approach and to explain how the disputed test is consistent with the analysis of National Woodwork, supra, has now been approved by the Fourth Circuit in George Koch Sons, Inc. v.
Joint Appendix at 254.
See N.L.R.B. v. Local 164, IBEW. 388 F.2d 105, 107–10 (3d Cir. 1968); American Boiler Mfrs. Assn. v. N.L.R.B., 404 F.2d 556, 561 (8th Cir. 1968); Beacon Castle Square Bldg. Corp. v. N.L.R.B., 406 F.2d 188, 192 n. 10 (1st Cir. 1969) (dictum); Western Monolithics Concrete Products, Inc. v. N.L.R.B., 446 F.2d 522, 526 (9th Cir. 1971). The Second Circuit has also employed an analysis of $ 8(b)(4)(B) which is inconsistent with the right to control doctrine. N.L.R.B. v. Local No. 28, Sheet Metal Workers. 380 F.2d 827, 830 (1967). See also Danielson v. Painters Dist. Council No. 20, 305 F.Supp. 1108, 1113–17 (S. D.N. Y. 1969) (dictum) (denying $ 10(1) preliminary injunction). Law review commentators have also been critical of the right to control test. See, e.g., Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA $8 81b)(1) and 8(e), 113 U.Pa. L. Rev. 1000, 1036-39 (1965); Note, 77 Yale L.J. 1401, 1416 (1968) (“The modern primary secondary analysis requires the complete abandonment of the present ‘right to control rule.").
Recently a panel of Ninth Circuit judges approved the Board's right to control test in dictum. See Associated General Contractors of California, Inc. v. N.L.R.B., 514 F.2d 433 (decided March 28, 1975), vacating 207 NLRB 698 (1973). Although professing that a subcontractor's right to control is merely an “important factor" in assessing "all the surrounding circumstances of a labor dispute, the Associated General Contractors court in effect asserted that a single, sufficient criterion for finding that a subcontractor is a “neutral, unoffending employer" is the fact that it "did not have and never had the power to accede to the union's demands." Id., 514 F.2d at 437. See also, e.g., id. at 438 (“A union's right to enforce a work preservation clause against an employer may extend only to work which is his to assign. When it is applied to work beyond the employer's power to give, a work preservation clause necessarily embodies a prohibited secondary objective.") This is, in actuality, the per se right to control test. See note 9 infra. It is curious that in making these statements the Ninth Circuit panel acknowledged neither a contrary precedent in the Ninth Circuit, see Western Monolithics, supra, nor the analysis and holdings (or the existence) of contrary cases in four other circuits. Moreover, in basing its holding on the rationale that in such situations the union is seeking to acquire rather than to preserve work, the court manifested a misunderstanding of the nature of work preservation agreements. See e. g., 172 U.S.App. D.C.-, 521 F.2d pp. 898-900 & notes 25, 34, & 37 infra.
521 F.2d 885 (C.A.D.C.)
N.L.R.B., 490 F.2d 323 (1973). We have reconsidered the right to control test in light of the Board's rationalization in Koch,“ but we continue to adhere to our previous holdings that the test impermissibly expands the congressionally intended scope of Section 8(b)(4)(B).
Petitioner Enterprise Association, a plumbing and pipefitting union, has for many years negotiated a collective bargaining agreement with Hudik-Ross Company, a firm engaged in the business of heating, ventilating, and air conditioning contracting. The agreement which was effective during the period of the union's allegedly secondary activity contained a provision, Rule IX, which obligated Hudik-Ross to have its employees “cut and thread internal piping in climate control units” which Hudik-Ross contracted to install.5 This cutting and threading was work traditionally performed by employees in the bargaining unit.
The Austin Company is the general contractor and engineer for construction of the Norwegian Home for the Aged in Brooklyn, New York. In January 1972, as a result of competitive bidding, Hudik-Ross was awarded a subcontract to provide the heating, ventilation, and air conditioning work for the Norwegian Home construction. This subcontract incorporated Austin's specifications that certain heating and air conditioning units manufactured by Slant/Fin Corporation would be installed in the Norwegian Home. The specifications clearly
indicated that the internal piping for these units was to be cut, threaded, and installed at the Slant/Fin factory, and the Board accepted the trial examiner's finding that “Hudik was aware of the specifications prior to making its bid and at the time it executed the subcontract” with Austin. It is not disputed that this cutting, threading, and installation was the type of work which, under Rule IX of its collective
4See Local 438, Plumbers & Pipe Fitters, 201 NLRB 59, enforced sub nom. George Koch Sons, Inc. v. N.L.R.B., 490 F.2d 323 (4th Cir. 1973). Unlike its earlier right to control opinions, in its Koch opinion the Board does say it is applying the "all the surrounding circumstances" test required by National Woodwork and all the Circuit Courts that have considered the question. But a mere reading of the Board's opinion demonstrates that its application of the National Woodwork test is pro forma and that its own right to control test is determinative. See also note 9 infra.
5JA at 253. Id. at 234.