American Boiler Manufacturers Association v. NLRB

• Decision Date: 29 January 1969
• Docket Number: No. 19034.,19034.
• Citation: 404 F.2d 556
• Parties: AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local Union 539 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

404 F.2d 556 (1968)

AMERICAN BOILER MANUFACTURERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local Union 539 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervenor.

No. 19034.

United States Court of Appeals Eighth Circuit.

December 6, 1968.

Rehearing Denied January 21, 1969.

Rehearing Denied January 29, 1969.

Kenneth C. McGuiness, of Vedder, Price, Kaufman, Kammholz & McGuiness, Washington, D. C., for petitioner; Stanley R. Strauss on brief and reply brief with him.

Leonard M. Wagman, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Atty., N.L.R.B., with him on briefs.

Donald J. Capuano, of O'Donoghue & O'Donoghue, Washington, D. C., for intervenor, United Assn. Pipefitters Local Unions 455 and 539; Martin F. O'Donoghue and Patrick C. O'Donoghue, Washington, D. C., on brief with him.

Gerard D. Reilly, Winthrop A. Johns and Lawrence T. Zimmerman, Washington, D. C., for Associated General Contractors of America and Mechanical Contractors Assn. of America, Inc. and John H. Pratt, Washington, D. C., for Air-Conditioning and Refrigeration Institute, filed brief as amici curiae for Associated General Contractors of America, Mechanical Contractors Assn. of America, Inc., and Air-Conditioning and Refrigeration Institute.

Before MEHAFFY, GIBSON and HEANEY, Circuit Judges.

Rehearing En Banc Denied January 21, 1969.

HEANEY, Circuit Judge.

This is a companion case to the St. Paul case (404 F.2d 547) and is before this Court for the second time.¹ Two issues are raised on appeal:² (1) Is the fabrication clause a per se violation of § 8(e)? (2) Is it a violation of § 8(b) (4) (B) for a union to threaten to strike to enforce a valid work-preservation clause if, at the time of the threat, the employer does not have the "right of control?"

We answer the first question in the negative for the reasons stated in the companion St. Paul case.

We answer the second question in the negative for the reasons stated hereafter.

The United Association Pipe Fitters Local Union No. 539 the Union, a sister Union to Local No. 455 in St. Paul, represents 700 craftsmen in the Minneapolis area. It claims jurisdiction over all pipefitting systems in its area. The Minneapolis Contractors Association is composed of contractors engaged in installing plumbing and heating equipment in the Minneapolis area.

After a number of unsuccessful attempts, the Union succeeded in obtaining a "fabrication" clause in its 1963 collective bargaining agreement with the Contractors Association. The clause was similar to the one negotiated in St. Paul.³ The agreement also provided for a fabrication committee with duties similar to those of the St. Paul committee.

The § 8(b) (4) (B) charge arises out of efforts of the Union to secure compliance with the fabrication clause on a building construction project for Tonka Toys, Inc.

The facts leading up to the dispute can be briefly summarized:

Lamb Company, a member of the Contractors Association and a party to the 1963 agreement with the Union, entered into a contract which specified that a packaged boiler was to be installed in the Tonka Toy building. Lamb ordered a packaged boiler through the Heinen Company, a representative of one of the boiler manufacturers. When it was delivered to the job site, the Union approached both Lamb and Heinen and demanded that certain piping be removed from the boiler before it was installed. It informed Lamb that the employees would be pulled off the job unless the demand was met.

The Board found that the Union's conduct was coercive but that it was for the purpose of preserving and reacquiring traditional work and was thus not violative of § 8(b) (4) (B). It did so on the premise that Lamb had the "right of control" — a premise which petitioner argues was faulty.

We agree with the petitioner that Lamb did not have the "right of control." The Board found that Lamb had a right to substitute an equivalent boiler. This finding is not supported by the record.⁴ A packaged boiler was specified⁵ and Lamb was bound by the specifications.

The question remains: Was the Union's conduct violative of § 8(b) (4) (B) even though Lamb did not have the "right of control?"

When the St. Paul case was originally before this Court,⁶ we affirmed the decision of the Board. The Board had held that it was a violation of § 8(b) (4) (B) to threaten a primary employer with a strike to enforce a work-preservation clause if the primary employer did not have the legal right to select the type of boiler to be installed at the time the threat was made. We affirmed without benefit of the teachings of National Woodwork Manufacturers Association v. National Labor Relations Board, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

The Board faced the "right of control" issue in National Woodwork. It adhered to its precedent.⁷ The Court of Appeals for the Second Circuit, relying on Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), sustained the Board. National Woodwork Manufacturers Ass'n v. N. L. R. B., 354 F.2d 594 (7th Cir. 1965). The Court stated:

"The Board held that the Union violated § 8(b) (4) (i) (ii) (B), by reason of its boycott of prefabricated doors on the Coatesville, North Junior High and St. Aloysius jobs, but as to Frouge, it held otherwise, giving as its reason, that, while in the first three jobs the specifications called for prefabricated doors and hence the Union target was the doors and persons making and distributing them, in Frouge the Union boycotted prefabricated doors which had been purchased by the contractor — but which were not required by job specifications. This conclusion seems to indicate that the Board held that the Union\'s target in Frouge was not the prefabricated doors and their manufacturer but rather contractor Frouge and that the situation involved only a primary dispute with him. We agree."

Id. at 597.

The Union did not seek review of the question before the Supreme Court. The AFL-CIO filed an amicus curiae brief in which it argued that the Board's "right of control" doctrine — "that the employees can never strike against their own employer about a matter which he lacks the legal power to grant their demand" — was an incorrect rule of law inconsistent with the Supreme Court's decision in National Labor Relations Board v. Insurance Agents' International Union, AFL-CIO, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960).

The Supreme Court expressly reserved the question stating that the "right of control" issue was not before it. National Woodwork, 386 U.S. at 615, n. 3, 87 S.Ct. 1250.

The Board adhered to the doctrine in a post-National Woodwork case. Pipe Fitters Local No. 120, United Association of Journeymen and Apprentices of the United States and Canada, AFL-CIO, 168 N.L.R.B. No. 138, 67 L.R.R.M. 1034 (1968).

A number of pre-National Woodwork decisions by United States Courts of Appeals had affirmed the Board's position.⁸ The principal reasons for doing so were stated by Judge Prettyman in Ohio Valley Carpenters District Council, U. B. of C. v. N. L. R. B., 339 F.2d 142 (6th Cir. 1964).

"The basic criterion is, as the statute (Section 8(b) (4)) specifically provides, the object, or objects, of the union action. So the problem is: What was the object? The Board has held several times that, if a union demands that a contractor do something he is powerless to do except by ceasing to do business with somebody not involved in the dispute, it is manifest that an object of the union is to induce this cessation of business. The courts to which this problem has come have agreed with the holdings.

"We think this is rational and proper reasoning. So in the case before us Hankins\'s subcontractor only means of compliance with the union demand was to cease doing business with Cardinal manufacturer of prefabricated parts. Hankins had no power to do by its own act what the union demanded that it do, that is, build the framing with its own men on the job-site. It is reasonable to hold that the object of the union was not an impossible act but was the alternative possible."

Id. at 145 (Footnotes omitted).

Nevertheless, there has been substantial criticism of the doctrine. Board Member Brown has consistently taken issue with its use. When National Woodwork was before the Board, he said:

"But, as I have heretofore pointed out, this is faulty reasoning for it makes the incidental factor of the extent to which an employer could satisfy a union\'s demands the determinative factor in ascertaining a union\'s objective in a given case. I believe that all the circumstances including, of course the factor of control, need to be considered in determining a union\'s objective in these cases, and the total picture in the instant matter, as has already been shown, is that of action taken pursuant to a lawful contract to protect the job opportunities of employees covered by the contract. Such activity is certainly not proscribed by Section 8 (b) (4) (B)."

Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Etc. Board Decision in National Woodwork, 149 N.L. R.B. No. 65, 57 L.R.R.M. 1341, 1346 (1964) (Dissenting opinion.). See also dissenting opinion in Ohio Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 144 N.L.R.B. No. 16, 54 L.R.R.M. 1003, 1004 (1963).

The law review commentary⁹ has also been critical of the doctrine. Typical of such comment is that in 77 Yale Law Journal 1401 (1968):

"The modern primary-secondary analysis requires the complete abandonment of the present `right of control\' rule. The union has bargained for its rights and signed a

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