ENTERPRISE ASS'N OF STEAM, ETC., LU NO. 638 v. NLRB

• Citation: 521 F.2d 885
• Decision Date: 01 July 1975
• Docket Number: No. 73-1764.,73-1764.
• Parties: 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, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

521 F.2d 885

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, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 73-1764.

United States Court of Appeals, District of Columbia Circuit.

Argued June 13, 1974.

Decided July 1, 1975.

COPYRIGHT MATERIAL OMITTED

Martin R. Ganzglass, Washington, D. C., for petitioner. Ernest Fleischman, New York City, was on the brief for petitioner.

Jay E. Shanklin, Atty., N. L. R. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., were on the brief for respondent.

Gerard C. Smetana, Chicago, Ill., Milton A. Smith, Richard B. Berman and Alan Raywid, Washington, D. C., filed a brief on behalf of the Chamber of Commerce of the United States of America as amicus curiae.

Vincent J. Apruzzese and Francis A. Mastro, Springfield, N. J., filed a brief on behalf of Public Service Electric & Gas Co. and American Cyanamid Co. as amici curiae.

Kenneth C. McGuiness and Robert E. Williams, Washington, D. C., filed a brief on behalf of Air-Conditioning and Refrigeration Institute and others as amici curiae.

Patrick C. O'Donoghue, Donald J. Capuano, and Roger C. Hartley, Washington, D. C., filed a brief on behalf of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO as amicus curiae.

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, Circuit Judge:

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).¹ The Board found that the petitioner union, Enterprise Association, had violated Section 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,"² 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. NLRB, 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. NLRB, 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. NLRB, 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 position,³ the Board has nevertheless steadfastly 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. NLRB, 490 F.2d 323 (1973). We have reconsidered the right to control test in light of the Board's rationalization in Koch,⁴ but we continue to adhere to our previous holdings that the test impermissibly expands the congressionally intended scope of Section 8(b)(4)(B).

I

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.⁶ It is not disputed that this cutting, threading, and installation was the type of work which, under Rule IX of its collective 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 Hudik-Ross 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.⁷ 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."⁸ However, applying its right to control doctrine,⁹ the Board found that the union's actions constituted impermissible secondary pressure against Hudik-Ross because Hudik-Ross, not 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.

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 Section 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.¹¹ 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."¹² 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 legal power to determine who performed the work the union desired to preserve.¹⁴ We nevertheless held, as have...