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bargaining agreement with the union, Hudik-Ross was obligated to have performed on the jobsite by its employees. However, there is no indication in the record, and the Board made no finding, that Hudik-Ross ever attempted to extricate itself from the pinch of two inconsistent contractual commitments by initiating bargaining with the union concerning a possible relaxation of Rule IX. Shortly after the Slant/Fin units arrived at the Norwegian Home jobsite, a business agent for the union informed Hudik-Ross that the steamfitters represented by the union would not install the units because their internal piping had been completed at the factory in violation of Rule IX. The refusal to install the Slant/Fin units having delayed completion of the Norwegian Home, Austin filed a complaint with the Board charging that the union was violating Section 8(b)(4)(B) by encouraging individuals employed by Hudik-Ross to refuse to perform certain services with an object of forcing or requiring Austin and HudikRoss to cease using the products of Slant/Fin. Both the administrative law judge (ALJ) and the Board sustained Austin's charge, despite the fact that there was no evidence indicating that the union or its affiliates had ever attempted to organize Slant/Fin or that the union was even aware of the organizational status or working conditions of the Slant/Fin employees. Indeed, the Board concluded that the union's refusal to let Hudik-Ross employees install the units “was for the purpose of preserving work they had traditionally performed." However, applying its right to control doctrine, the Board found

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that the union's actions constituted impermissible secondary pressure against Hudik-Ross because Hudik-Ross, not

7See id. at 236.

8Id. at 254.

"Since the right to control doctrine had been rejected by five circuits, the Board understandably did not mention that doctrine by name. Rather, after noting the union's work preservation purpose, the Board merely cited its Koch opinion and stated that "Hudik was incapable of assigning its employees this work; such work was never Hudik's to assign in the first place." Id. See also note 36 infra. In its brief to this court the Board admits that it is applying the right to control doctrine, but characterizes the test as merely creating a "prima facie" inference that there is an illegal secondary objective, “absent proof to the contrary." Brief for the NLRB at 5. We realize that under SEC v. Chenery Corp., 318 U.S. 80, 93–95, 63 S.Ct. 454, 87 L.Ed. 626 (1943), we review the Board's opinions and not its counsel's brief. However, since counsel's rationalization might be adopted by the Board in its next right to control case, we deem it useful, in the interest of bringing right to control litigation to an early conclusion, to comment on it. In short, we find that, given the virtual impossibility of proving the lack of the imputed secondary objective, this "prima facie” approach in effect constitutes the same old per se test which we have condemned in our prior opinions and which contravenes the rationale and spirit of National Woodwork. See, 172 U.S.App. D.C., 521 F.2d pp. 892–901, infra.

Our conclusion that Hudik-Ross is far from being an innocent neutral bystander to the dispute over installation of the

521 F.2d 885 (C.A.D.C.)

having the legal power to determine who would perform the internal piping for heating and cooling units in the Norwegian Home, was a neutral in that dispute.

prefabricated units does not depend at all on any suspicion that Hudik-Ross instigated Austin's decision to use the Slant/ Fin units. Cf. Painters Dist. Council No. 20, 185 NLRB 930, 932 (1970). We fully accept the Board's factual finding that Hudik-Ross merely bid on a job for which Austin had already specified the Slant/Fin units. Rather, our conclusions are based on an analysis of all the surrounding circumstances of the conflict, not just the circumstances relating to the locus of actual Ipower to assign the work. By contrast, once the Board finds that the employer lacked legal control, it finds a per se violation of § 8(b)(4)(B). See generally Local 438, Plumbers & Pipe Fitters, supra note 4. As we stated in Local 742, Carpenters v. N.L.R.B., 144 U.S.App. D. C. 20, 24, 444 F.2d 895, 899 (1971):

"The artificiality of the [Board's right to control] test is particularly patent in cases such as this one-where the employees apparently have a grievance growing out of labor relations with their own employer (i.e., loss of traditional unit work) and immediately provoked by an action of their own employer (i.e., his signing of a contract which would deprive them of that work). The Board does not stop to consider these aspects of the dispute. Nor does it look to see whether there may be other grievances, against other employers, which underlie the union's action. Rather, the board seems to hold that, when an employer contracts away his power to satisfy union demands, he also contracts away his interest and involvement in the labor relations issue in dispute. He is depicted as the mere passive agent of others the fact that the

present dispute has its origin and its substantive focus in his ongoing labor relations with his employees is deemed irrelevant. *

(Footnote omitted.)

19

In attempting to rationalize and affirm the Board's holding, the dissenters present a smorgasbord of possible explanations of what the Board has done. But see dissenting op. at n.72. First, we are offered the per se right to control test in its purest form:

"Hudik is essentially neutral in this dispute because it does not have and never did have the power to comply with the Steamfitters' demands. Thus the pressure created by the Hudik employees' boycott of the Slant/Fin units must have been directed at Austin and Slant/Fin as they were the only parties with the power to satisfy the demand that the work be taken from Slant/Fin employees and reassigned to the Union."

Id. at 172 U.S.App. D.C.-, 521 F.2d at 920 (emphasis added). See also id. at—, 521 F.2d at 921 (“The Union is seeking what it asserts is work preservation, but the means it has chosen toward that end-a strike against an employer who never had the disputed work to assign-constitutes secondary pressure.") (emphasis in original); id. 172 U.S. App. D. C. at-, 521 F.2d at 926 ("Even where right to control is not decisive in almost any case it will be a factor entitled to very substantial weight because it measures the ability of the employer to comply with the union demands."); id. 172 U.S. App. D. C. at—, 521 F.2d at 928 (“boycotts by craft unions against subcontractors necessarily have as a primary object the application of pressure to those third parties who actually require the use of factory-prepared products") (emphasis added); id. at n.53 (“[O]nly Austin and Slant/Fin are capable of acceding to the Union's demands. Thus Hudik is neutral with respect to the particular remedy of economic action which the Union invoked to redress its grievances."); id. 172 U.S. App. D.C.—, 521 F.2d at 938 & n.101. But see id. at n.44.

* *

Next, we are told that the Board has applied a prima facie test because it will validate a work preservation action against a subcontractor who possessed the legal right to control the work assignment but contracted away that right: "The Board does not employ a per se formulation, which might well violate the stricture of National Woodwork that the focus of a union's action must be determined from all the surrounding circumstances; instead, the Board relies on a prima facie standard. By this test, a union may not boycott an employer who lacks the right to control the assignment of disputed work, provided that the employer has not voluntarily relinquished that control. The redeeming feature of this criterion is that it permits and even mandates the conclusion that the union acted properly in launching an economic action whenever "the employer's loss of power to assign the work is the result of his own efforts to instigate the subcontracting to another of work subject to his work preservation agreement with the union' * In such a case the employer would cease to be neutral, and would be termed 'offending' by virtue of his voluntary action surrendering legal control of the disputed work." Dissenting op., 172 U.S.App. D. C.-, 521 F.2d at 931 (footnotes omitted; emphasis in original). See also id. 172 U.S.App.D.C. at-, 521 F.2d at 937 ("the prima facie right-to-control test rests on the Board's considered judgment that a subcontractor's inability to affect or avoid prefabrication specifications in general contracts renders him an inappropriate and impermissible target of union economic activity") (emphasis added). This is the approach of the Board as elaborated in Koch, and which, as we have indicated above, is a per se test once the actual locus of legal control is isolated; the Board does not consider other circumstances to determine whether the employer without control over the work itself is nevertheless not a neutral in the labor dispute.

Finally, the dissent asserts that the Board, in conformity with the National Woodwork decision, actually evaluated "all the surrounding circumstances" to determine whether Hudik-Ross was a neutral; the Board, under this rationalization, did not simply label Hudik-Ross a neutral party once the Board concluded it did not have, and never had, the legal power to assign its employees the disputed work. See, e. g., dissenting op., 172 U.S.App.D.C. at-, 519 F.2d at 917–918, 925-926, 928-929, 941, & nn.8, 74. The dissent premises this explanation on the fact that the ALJ, in another context, used the

521 F.2d 885 (C.A.D.C.)

892

II

Our two earlier opinions rejecting the Board's right to control test were guided by the teaching of the Supreme Court in National Woodwork, supra. Affirming the Board, the National Woodwork Court held that a work preservation clause in a collective bargaining agreement does not violate Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e) (1970), 10 and that a carpentry union's refusal to install prefabricated doors pursuant to such a clause is primary activity that does not violate Sec

phrase "all the surrounding circumstances," and the fact that the Board affirmed his "rulings, findings, and conclusions" to the extent they were consistent with its decision. See, e. g., id. 172 U.S.App. D.C., 521 F.2d at 925-926 & n.8. Based on this slender reed, we are implored to discount the fact that the Board, in citing Koch as the basis for its decision, was following its right to control test as fully enunciated in that case. The dissent wisely omits the Board's citation of Koch and similar cases in its otherwise extensive quotation from the Board's decision, see id. at n.10, and it is clear that both the ALJ and the Board simply categorized Hudik-Ross as a neutral because it lacked control over the assignment of the disputed work. Indeed, the ALJ concluded:

"While it is true that there are conflicting interpretations of the National Woodwork decision, supra, I believe that under the Board's view of the law the Respondent herein has violated section 8(b)(4)(i)(ii)(B) of the Act since Hudik was a secondary employer that, unlike Frouge in the National Woodwork case, had no control over the selection and specification of the prepiped units. *

*

JA at 242 (emphasis added). Moreover, the cases cited and discussed by the ALJ, see JA at 237, 242 n.13, are all ones in which the Board determined that the locus of control over the work in dispute was concusive as to the question of the legality of the union's activity.

Nevertheless, it is true that the ALJ employed the phrase "surrounding circumstances" in the hypotheticals quoted by the dissent, see dissenting op. at n.8, and the dissenters dwell at considerable length on the circumstance to which the ALJ referred-the extent to which the construction industry in major metropolitan areas is unionized. See, e. g., id. 172, U.S.App. D.C., 521 F.2d at 928-930. However, the ALJ simply referred to that factor as a circumstance which he believed made Hudik-Ross an effective instrumentality of pressure against Austin and Slant/Fin. See id. at n.8. Even the ALJ recognized that this factor (effectiveness or ineffectiveness of secondary pressure) is absolutely irrelevant to the question of whether Hudik-Ross was a neutral in the labor dispute and thus immune even from threats of secondary pressures under § 8(b)(4)(B). See id: ("the fact that in Example A * Hudik would be an ineffective means of pressure by the Union against Slant/Fin and Austin, and, in Example B, the instant case, Hudik is an effective means of pressure in view of all the surrounding circumstances, does not alter the fact that in both situations, Hudik is a means or instrumentality and that the Union's primary dispute is with Slant/Fin and Austin"). But see dissenting op. at n.55. Thus the ALJ's use of that phrase (as part of an argument that Hudik could not comply with the union's demands) in no way discredits our conviction that both the ALJ and the Board are continuing to apply an impermissible per se right to control test. Moreover, as we elucidate more fully later in our opinion, both the ALJ and the Board are incorrect in the premises which underlie both the right to control test and the hypotheticals the dissent quotes; Hudik is not a neutral in this labor dispute, see generally pp. 172 U.S.App.D.C., 521 F.2d pp. 921-928, infra, and it may comply with the union's demands, even without ceasing doing business with Austin and Slant/Fin or attempting to force them to change their business practices, see, e. g., pp. 172 U.S.App.D.C.-, 521 F.2d pp. 924-928, infra.

10Except for those agreements specified in the proviso to § 8(e), that section renders void and unenforceable an employer's agreement to do that which § 8(b)(4)(B) prevents the union from exerting pressure to bring about. See note 38 infra.

The language of § 8(e) is comparable to the language of § 8(b)(4)(B) in most significant respects:

"(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible [sic] and void[.]*

11

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893

tion 8(b)(4)(B) when the union's sole objective is preservation of work which its member employees had traditionally performed. The Court traced the evolution of Sections 8(b)(4)(B) and 8(e) and determined that the sweeping language of these sections had to be qualified by the congressional intent, now expressed in the proviso to Section 8(b)(4)(B), to permit coercive union activity which had traditionally been considered primary rather than secondary. " Recognizing that the critical distinction between secondary and primary activity would often be a subtle and difficult one to make, the Court concluded that the determination whether the carpentry union's refusal to install the premachined doors was protected primary activity would turn on an "inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work for [the struck employer's] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting [struck] employer vis-a-vis his own employees." The Supreme Court found that the Board had appropriately applied this test for distinguishing primary from secondary activity since the Board had ascertained on the basis of substantial evidence that the carpentry union's refusal to install the prefabricated doors "related solely to the preservation of the traditional tasks of the jobsite carpenters."13

* * *

As we recognized in Local 742, supra, and Local 636, supra, the National Woodwork Court explicitly noted that it was not presented with the question of the propriety of the Board's right to control doctrine since the struck employer in that case was a general contractor who had the

"In 1959, a proviso was added to § 8(b)(4)(B), explicitly exempting primary activity from the prohibitions of that section: *Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing[.]"

The National Woodwork Court held that, in light of congressional intent, the same limitation was implicitly incorporated into § 8(e). See note 38 infra.

12386 U.S. at 644-45, 87 S.Ct. at 1268 (emphasis added; footnotes omitted). In a companion case, Houston Insulation Contractors Assn. v. N.L.R.B., 386 U.S. 664, 668, 87 S.Ct. 1278, 1281, 18 L.Ed.2d 389 (1967), this language was reaffirmed. "National Woodwork Mfrs., supra, holds that collective activity by employees of the primary employer, the object of which is to affect the labor policies of that primary employer, and not engaged in for its effect elsewhere, is protected primary activity."

13386 U.S. at 646, 87 S.Ct. at 1268.

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legal power to determine who performed the work the union desired to preserve.14 We nevertheless held, as have all but one of our sister circuits that have faced the issue, 15 that the rea

894

soning underlying the National Woodwork decision compels the conclusion that an employer's lack of legal control over the work the union seeks to preserve for its members cannot alone be decisive of the legality of the union's objectives.16 Indeed, we remain convinced that, absent other evidence that a work preservation strike is actually intended to satisfy illegal secondary objectives, such a strike is lawful primary activity, protected under Sections 7 and 13 of the National Labor Relations Act, 29 U.S. C. §§ 157, 163 (1970),1 as well as under the proviso to Section 8(b)(4)(B).

A.

In validating work preservation clauses, the National Woodwork Court placed primary reliance on the legislative history of Sections 8(b)(4)(B) and 8(e). The Court determined that Congress only intended these sections to prohibit coercive union activity that is directly exerted against an "unconcerned" or "neutral" employer, drawn by the

14See id. 386 U.S. at 616-17 n.3, 87 S.Ct. 1250. Much of the argumentation in the briefs to the Court in National Woodwork concerned the propriety of upholding the union's actions because the employer had control of the work. Indeed, the Board felt compelled to assert that

“even if the Court might conclude that the Board and the court below placed undue emphasis on the fact that Frouge had 'control' over the kind of doors he could use *** the result reached * is nevertheless proper."

Brief for the NLRB at 7. Rather than base its holding on the extent of employer control, the Supreme Court engaged in a detailed factual examination of "all the surrounding circumstances" of the dispute. Seen from this perspective, its "reservation" of the control question is better understood as a warning that the opinion not be read as impliedly approving the Board's right to control doctrine. In resolving the right to control problem, we now follow the lead of the Supreme Court in determining, on all the factors presented, whether the union's goal is solely work preservation and whether the struck employer is a neutral to the dispute.

15See note 3 supra. Even the Fourth Circuit, in approving the Board's right to control test, was at pains to conclude that in finding a violation the Board had looked to "all the surrounding circumstances," as required by National Woodwork. See Koch, supra note 4, 490 F.2d at 327. However, the Board in that case found the subcontractor's lack of control determinative of the legality of the union's conduct, see 201 NLRB at 61; all of the "surrounding circumstances" supplied by the Fourth Circuit in its opinion were merely alternative ways of describing that fact. See 490 F.2d at 327.

16While the employer's lack of legal control cannot be determinative, it may still be considered by the Board as part it its inquiry into the union's actual objectives. See Local 742 Carpenters v. N.L.R.B., supra note 9, 144 U.S. App. D. C. at 28, 444 F.2d at 903; Local 636, Plumbers & Pipefitters v. N.L.R.B., 139 U.S. App. D. C. 165, 169-70, 430 F.2d 906, 910-11 (1970). See also 172, U.S.App. D.C. pp.-, 521 F.2d pp. 903-905, infra

17These sections preserve the right of employees to strike and to engage in other concerted activities for the purpose of mutual aid or protection. The National Woodwork Court stated that, in "the absence of clear indicia of congressional intent to the contrary, these provisions caution against reading statutory prohibitions as embracing employee activities to pressure their own employers into improving the employees' wages, hours, and working conditions." 386 U.S. at 643, 87 S.Ct. at 1268.

18Id., 386 U.S. at 624, 87 S.Ct. 1250.

19Id. at 620, 626, 87 S.Ct. 1250.