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that the union's purpose in refusing to install the units was work preservation was correct, it can be assumed that the union would have accepted a payment from Hudik-Ross to the employees to compensate them at least in part for the employer's breach of the bargaining agreement. Unions presumably seek agreements to preserve for their members the work which they have traditionally performed in order to maintain the income level of the members. Evidence that the union was unwilling to permit its members to install the prefabricated units even if they were paid for work they lost by the prefabrication would call into question the Board's finding that the union's objective was merely work preservation; it would suggest

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that the union desired to boycott Slant/Fin's goods for some other reason, such as that firm's labor relations policies. However, such evidence was not adduced and, given the Board's finding that the union's purpose was preservation, we cannot speculate as to its existence.35

Of course, Hudik-Ross might prefer to terminate its subcontract with Austin or pressure Austin to change its specifications for premachined climate control units rather than to negotiate with its employees as to alternatives for compensating them for their lost work. However, the fact that such a decision might have adverse effects on other employ

strike provision and that stipulates that such disputes will be submitted to arbitration. Cf. Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). However, no such provision precluded the work stoppage in this case, see note 23 supra, and it is improper for the Board to limit the union's arsenal of weapons as a matter of law. Cf. N.L.R.B. v. Insurance Agents' International Union, 361 U.S. 477, 497-98, 80 S. Ct. 419, 4 L. Ed. 2d 454 (1960). And although the dissent might believe it is "preferable" to resort to such peaceful mechanisms for resolving work preservation controversies, see dissenting op. at n.66, there is no justification in the Act for asserting that arbitration must be employed or that only a suit for contract breach is proper in the circumstances of the case sub judice, see note 38 infra; if the employer seeks to exclude certain instruments from the union's armamentarium, the collective bargaining process accords him an adequate and appropriate mechanism for doing so.

What would appear to be a paradigmatic voluntary vehicle for peacefully settling work preservation disputes, both allowing the sub-contractor to bid for construction contracts involving prefabricated products and guaranteeing union compensation for an employer's breach of his collective bargaining agreement, was executed by several of the parties involved in Associated General Contractors of California, Inc. v. N.L.R.B., supra note 3. There a trade council composed of 17 local unions and a trade association of employers in the construction industry had negotiated a work preservation agreement; if a union representative believed that the agreement was being violated, the union could require the employer to cease doing the contested work, but only for a period of 72 hours, while a joint arbitration board investigated the merits of the claim. After the expiration of 72 hours, the employer could resume work whether or not the investigation was complete. The arbitration board could make a variety of appropriate awards against an offending employer, including "pay[ment of] the equivalent in wages and fringe benefits lost by employees ** into the union's pension fund. Nevertheless, the court in that case found the arbitration board's assessment against the offending employer of approximately $560 to be improper since it determined that, to the extent the agreement covered work not within a subcontractor's legal control, it was a prohibited "hot cargo" clause in violation of § 8(e), and that enforcement of that clause constituted a violation of §8(b)(4)(B).

35There was no evidence that the union would have installed the Slant/Fin units if the employees who worked on the internal piping off the jobsite had been organized in an affiliated labor organization. Nor was there any evidence that the union's actions were motivated by, or that the union was familiar with, the organizational status of the Slant/Fin employees. Of National Woodwork, 386 U.S. at 646, 87 S.Ct. at 1269.

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ers like Austin and Slant/Fin does not transform an involved employer like Hudik-Ross against whom pressure is exerted into an innocent neutral.36 For as the National Woodwork Court teaches, in enacting the proviso to Section 8(b)(4)(B) Congress made it clear that even a strike which would inevitably have an adverse impact on a secondary employer, like the National Woodwork Association member in that case who had contracted to sell prefabricated

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doors, is not proscribed by Section 8(b)(4)(B) if the employer struck is not an innocent neutral to the union's dispute.37

36-Congress was concerned with the injury suffered by neutral employers, but only where the injury resulted from the use of a secondary boycott. Almost every strike causes economic loss to one or more employers who are unconcerned with the labor dispute. A coal distributor may go bankrupt because of a coal strike. A small steel fabricator may be forced to close his doors because of a major steel strike. Such economic losses as these far outweigh the losses caused by secondary boycotts. Yet Congress has not sought to aid these neutrals * This point is significant-and sometimes overlooked--because it shows that, while harm to a neutral is an essential ingredient of a secondary boycott, such injury is not by itself objectionable in the eyes of the legislature."

* *

Tower, A Perspective on Secondary Boycotts, 2 Lab. L.J. 727, 732 (1951), quoted with approval in Lesnick, The Gravamen of the Secondary Boycott, 62 Colu. L. Rev. 1363, 1411–12 (1962). See also Note, supra note 3, 77 Yale L.J. at 1416-17. The dissent, however, apparently fails to distinguish between the impermissable objectives of secondary activity and the permissable effects of primary activity. See, e. g. dissenting op., 172 U.S.App.D.C. at-, 521 F.2d at 930 (manufacturer may be "materially affected"); id. 172 U.S.App.D.C. at-, 521 F.2d at 937 (referring to "secondary effects of impermissable magnitude" ); id 172 U.S.App.D.C. at §, 521 F.2d at 940 (“prohibited secondary effects and objects"); id. at nn. 78 & 87. See also Local 636, supra note 16, 139 U.S.App.D.C. at 168-69, 430 F.2d at 909-10.

Our conclusion as to the legality of the union's activity might be different if the union actively sought termination of the Slant/Fin contract by exerting pressure directly against Austin. Cf. National Woodwork, 386 U.S. at 630-31, 87 S.Ct. 1250. In such circumstances, termination of that contract would not simply be an ancilliary effect of the union's primary action, but an objective whose legality would have to be assessed independently. If Hudik-Ross is recognized as the primary employer for purposes of this work preservation dispute, the Board might reconsider whether Austin might appropriatly be held to be a neutral party against whom economic pressure could not be directly applied. See note 44 infra. We note, however, that contrary to the assertions of the dissenting judges, see e. g., dissenting op., 172 U.S.App. D.C. at-, 521 F.2d at 916, 918, 930, the mere fact that on a single occasion the union “informed Austin * * that it would not let Hudik install the climate control units involved," JA at 254, does not constitute sufficient evidence to indicate that impermissible pressure was directed against Austin. Indeed, in simply informing the general contractor, contemporaneously with the arrival of the prepiped units on the jobsite and the initial notificaton of Hudik concerning the union's belief that the work was guaranteed to it by Rule IX, that the union would not install those units "because the piping inside the units was steamfitters' work," id. at 235, the union was doing no more than Hudik-Ross should have done in apprising Austin of the fact that Hudik-Ross' conflicting contractual commitments had generated a labor controversy at the jobsite. However, we nevertheless leave the question of whether there are additional indicia that the union's pressures were actually directed against Austin (and that Austin was a neutral in the dispute) open for the Board's consideration on remand.

3786 U.S. at 627, 87 S.Ct. at 1259. The Board contends that these possible effects cannot be deemed ancillary because "it is impossible to achieve [them] except by the forbidden means of forcing another independent contractor to change its policy or terminate a business relation." Brief for the NLRB at 26. However, as we stressed in our discussion of HudikRoss' neutrality, it was possible for Hudik-Ross to effectively satisfy the union's demands without affecting the contractual rights of any third party. Moreover, the mere fact that meeting a union's demands requires termination of contracts with third parties does not invariably indicate the presence of secondary activity. See National Woodwork; 172 U.S.App. D.C., 521 F.2d 902-903, infra. The dissent like the Board, apparently also fails to comprehend that work preservation clauses are essentially fashioned to preserve employees' wages, and that negotiated settlements, within a subcontractor's power to achieve, may be arrived at in order to compensate the employees for the subcontractor's breach of his collective bargaining agreement. See, e. g., dissenting op., 172 U.S.App.D.C., 521 F.2d at 916-917 (presuming disputed work would actually have to be redone rather than resolved through a monetary settlement); id. 172 U.S.App. D.C. —, 521 F.2d at 918 (only Austin could comply with union's demands); id. 172 U.S.App.D.C. 521 F.2d at 920 (“absurdity" to believe union pressure directed against Hudik, which could not meet demands); id., -, 521 F.2d at 924 (demands could only be met by dismantling manufactured articles at jobsite and redoing work); id. 172 U.S.App.D.C., 521 F.2d at 931 ("Hudik's alternatives were either to bid on the Norwegian Home contract in spite of the contractual conflict or to have insufficient work for its employees"), id. 172 U.S.App.D.C., 521 F.2d at 932-933 (dispute cannot logically be with subcontractor, who cannot meet demands); id. 172 U.S.App.D.C. -, 521 F.2d at 934, 941 & nn.66 & 74.

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The Board's right to control doctrine is a continuing attempt to circumvent the congresional proviso and is inconsistent with the Court's analysis in National Woodwork. Moreover, it is a continuing inducement for employers to violate their bargaining agreements. If employers do not want work preservation clauses to cover prefabricated units, they should not sign bargaining agreements with such clauses unless they so state. And when an employer gets himself into a bind, as did Hudik-Ross, he should arbitrate or negotiate his way out. Having the Board bail him out is to demean the National Labor Relations Act by encouraging deliberate, if not always planned, violations of bargaining agreements.38

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B.

In its brief to this court, the Board vigorously asserts that N.L.R.B. v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 71 S. Ct. 943, 95 L. Ed. 1234 (1951), mandates a different conclusion than the one we have reached. We find that this reliance on Denver is misplaced. The Denver Court sustained a Board finding that a construction had violated Section 8(b)(4)(B) by striking against a general

38 The Board, apparently cognizant of the inequities produced by its right to control doctrine in a case such as the present one, indicates that "the doctrine does not foreclose a union from enforcing a work preservation provision against an employer who lacks control of the work through a lawsuit or contractual arbitration procedures." Brief for the NLRB at 5 n.4, citing Koch. See also dissenting op., 172 U.S. App. D.C. —, 521 F.2d at 938-941 & nn.66, 95, 101, 106. Koch, in suggesting that the union's "remedy" may well lie in a civil suit for "breach of contract," see 201 NLRB at 63, cited Local 1976, Carpenters v. N.L.R.B. [Sand Door], 357 U.S. 93, 108, 78, S.Ct. 1011, 2 L.Ed.2d 1186 (1958), as support for that position. (Nor does the dissent cite any additional support.) It is sufficient to observe that the suggestion--than an agreement to preserve work from nonjobsite prefabrication is legal and enforceable in court even though it obligates the employer to do that which the union could not exert economic pressure to force the employer to do--is completely untenable in light of the congressional overruling of Sand Door by the passage of § 8(e) and the National Woodwork Court's formulation of the in pari materia relationship of §§ 8(e) and 8(b)(4)(B). See 386 U.S. at 644-45, 87 S, Ct. at 1268 (majority opinion); id. at 649,87 S.Ct. at 1271 (memorandum of Mr. Justice Harlan) (“ § 8(e), it is agreed, is to be taken pari passu" with § 8(b)(4)(B); id. at 660, 87 S.Ct. at 1276, quoting Ohio Valley Carpenters, 136 NLRB 977, 987 (1964) (Stewart, J., Dissenting) ("there is little point and no logic in delaring an agreement lawful under 8(e), but in finding its enforcement condemned under 8(b)(4)(B)"), It is thus inescapable that approval of the Board's right to control test necessarily would preclude a succesful union suit for breach of a work preservation agreement whenever the employer who breached the agreement did not have legal control over the work the union desired preserved. See, e. g., Associated General Contractors of California, Inc. v. N.L.R.B. supra note 3. For employees dealing with employers regularly in such a position, collective bargaining and other concerted efforts to protect their traditional work and income from "onrushing technological change," see National Woodwork, 386 U.S. at 640, 87 S.Ct. at 1266, would be substantially undermined. Though we do not necessarily believe that the tug and pull of collective bargaining and concerted economic activity provide the ideal means to accommodate the job and income security of American laborers with the efficiencies of automation, we no more than the National Woodwork Court can say that Congress, without debate and study, intended by its enactment of § 8(b)(4)(B) to block this traditional and legislatively protected approach to such a serious industrial relations problem. See generally, 386 U.S. at 640-44, 87 S.Ct. 1266-70. And although the dissenters insist that our decision "increases the costs of construction projects suited to prepared components," dissenting op., 172 U.S. App. D. C., 521 F.2d at 941, the National Woodwork Court has instructed us that such "economic and technological factors * are addressed to the wrong branch of government.

[Such arguments should be left] for Congress." 386 U.S. at 644, 87 S.Ct. at 1269.

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contractor in order to force him to terminate his contract with a subcontractor who employed nonunion labor-a classic secondary boycott. In the course of its opinion the Denver Court in dicta made several statements which the Board in its brief now maintains establish principles upon which the right to control test can be based:

"If there had been no contract between Doose & Lintner [the general contractor] and Gould & Preisner [the nonunion subcontractor] there might be substance in [the union employees'] contention that the dispute involved no boycott. If, for example, Doose & 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 disposed of the dispute. However, the existence of the Gould & Preisner subcontract presented a materially different situation. The nonunion employees were employees of Gould & Preisner. The only way that respondents [the union employees] could attain their purpose was to force Gould & Preisner itself off the job. This, in turn, could be done only through Doose and Lintner's termination of Gould & Preisner's subcontract. The result is that the Council's strike, in order to attain its ultimate purpose [full unionization of the construction site], must have included among its objects that of forcing Doose & Lintner to terminate that subcontract. * * * It is not necessary to find that the sole object of the strike was that of forcing the contractor to terminate the subcontractor's contract."

341 U.S. at 688-89, 71 S. Ct. at 951, quoted in brief for the NLRB at 8-9 (emphasis in original). Although this language obviously does not constitute a holding endorsing the Board's right to control doctrine since the general contractor in Denver had full legal power to assign the work which the union did not want nonunion employees to perform, the Board argues that this language should be applied in the instant case. The union's ultimate objective of work preservation, the argument runs, could only be attained by keeping Slant/Fin from completing the internal piping; this, in turn, could be done only through Austin's termination of its contract with Slant/Fin; the union's refusal to install the units must therefore have included among its objects that of forcing Austin to terminate the Slant/Fin contract; and such an objective would, given the dicta from the Denver opinion, render the refusal to install

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the units as an illegal secondary boycott under Section 8(b)(4)(B).

As we have already indicated, we do not agree that termination of the Slant/Fin contract was a necessary intermediate step to satisfaction of the union's ultimate objective; Hudik-Ross could have resolved the dispute without

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affecting the contractual relationships of either Austin or Slant/Fin. But even accepting the factual premises of the Board's analysis, the quoted Denver language does not support the Board's right to control test. For literal application of that language would have outlawed even the union activity in National Woodwork, where the struck employer was a general contractor with full legal control over assignment of the work in dispute. In National Woodwork the carpentry union's objective of work preservation was only obtained by the general contractor's termination of his contract to purchase prefabricated doors from one of the Woodwork Association's members. But the National Woodwork Court, in upholding the union's actions, clearly did not consider this to be a proscribed secondary objective; indeed, that the Court did not find it necessary to even consider the quoted Denver language.

39

A closer examination of the Denver opinion reveals why that case was inapposite to both National Woodwork and the present case. The Board's quotation of Denver is less than candid, and reveals the danger of reducing a complex analysis turning upon "all the surrounding circumstances" into a simplistic per se doctrine. For the above paragraph from Denver was introduced by this observation:

"In the background of the instant case there was a longstanding labor dispute between the Council and Gould & Preisner due to the latter's practice of employing nonunion workmen on contruction jobs in Denver."

341 U.S. at 688, 71 S.Ct. at 951. The Court, looking to the whole factual context of the controversy, thus recognized that the union pressure was directed against the labor relations practices of the subcontractor, and that the strike against the general contractor was "tactically calculated to

39 The dissenters in National Woodwork felt that Denver supported the prohibtion of all work preservation clauses. See 386 U.S. at 651, 87 S.Ct. at 1271. Clearly the majority rejected this argument.