LOCAL NO. 742, UNITED BRO. OF CARPENTERS & JOIN. v. NLRB

• Decision Date: 06 April 1971
• Docket Number: 24346.,No. 23486,23486
• Citation: 444 F.2d 895
• Parties: LOCAL NO. 742, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, John Foreman, Business Agent, and Harold Stolley, Steward, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, J. L. Simmons Company, Inc., Intervenor. J. L. SIMMONS COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

444 F.2d 895 (1971)

LOCAL NO. 742, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, John Foreman, Business Agent, and Harold Stolley, Steward, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, J. L. Simmons Company, Inc., Intervenor.

J. L. SIMMONS COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 23486, 24346.

United States Court of Appeals, District of Columbia Circuit.

Argued December 18, 1970.

Decided April 6, 1971.

Mr. Bernard M. Mamet, Chicago, Ill., for petitioner in No. 23,486.

Mr. Paul G. Gebhard, Chicago, Ill., with whom Mr. Arthur B. Smith, Jr., Chicago, Ill., was on the brief, for petitioner in No. 24,346 and intervenor in No. 23,486.

Mr. Frank Itkin, Atty., National Labor Relations Board, of the bar of the Supreme Court of New Jersey, pro hac vice, by special leave of court, for respondent. Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Mrs. Abigail Cooley Baskir, Atty., National Labor Relations Board, were on the brief for respondent. Mr. Charles R. Both, Atty., National Labor Relations Board, also entered an appearance for respondent.

Before WRIGHT and MacKINNON, Circuit Judges, and SMITH,^* Chief Judge, United States District Court for the District of Montana.

J. SKELLY WRIGHT, Circuit Judge:

These cases concern one of the most important, but one of the most elusive, distinctions embedded in our labor law — the distinction between "primary" and "secondary" union activity under Section 8(b) (4) (B) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (B) (1964). J. L. Simmons Company filed charges against Local 742, alleging that the carpenters had violated that section in refusing to install prefabricated doors manufactured by another employer. The trial examiner dismissed the charges. He found that the union and Simmons were the primary parties to a dispute over work preservation and concluded that the union's pressure on Simmons was therefore permissible. However, the Board reversed, finding that Simmons was a mere "neutral" with respect to the hanging of prefabricated doors and that the union's actions thus amounted to a forbidden secondary boycott.

The primary-secondary distinction, though originating in the common law, has never taken on very clear dimensions, and the Board has attempted to bring order out of the chaos by formulating determinate rules to guide its application. One of those rules — the "right to control" test — makes union activity secondary per se if the members' employer, subjected to pressure, lacks immediate "control" over the matter in dispute. That test was applied by the Board to this case, and its validity is at issue on appeal.¹

This court and other courts have recently begun to criticize the "right to control" test. Guided by the Supreme Court's articulation of the primary-secondary distinction, we have cut back on the test's application and questioned its basic validity.² Yet the Board continues to defend the test in toto. It takes note of our previous decision undermining the test, but states only that "we respectfully disagree with the Court's decision, for the reasons set forth in our brief therein, and, accordingly, we shall not burden the Court with a restatement of those views."³ Fortunately, intervenor J. L. Simmons Company, Inc. has taken a more responsible approach to this appeal. It seeks to save only a part of the "right to control" test by arguing that the test was properly applied on the facts of this particular case which, it says, are significantly different from those in previously reported cases.

While administrative agencies, as a general matter, deserve praise for their efforts to structure discretion under such rules, we hold that in this instance the Board has gone too far. The "right to control" test is not appropriately suited to the statutory purpose it is meant to effectuate. The peculiar facts of this case do not cause us to alter that conclusion. We are convinced that the test, applied as a per se rule, must be entirely abandoned forthwith. Accordingly, we remand this case to the Board for further consideration.

I

Members of Local 742 of the carpenters' and joiners' union were employed by the J. L. Simmons Company which had contracted to build a new addition to the Macon County Hospital in Illinois. One of the carpenters' duties on the project was to hang new doors. This task might have been expected to provide a good deal of work for union members, for it generally involved not simply hanging but also prior preparation — trimming, routing, mortising and cutting — of the doors. The Board adopted a finding of the trial examiner that such preparatory work was "historical and traditional unit work of carpenters at the job-site."⁴ Yet in this case the carpenters were deprived of that part of the task; they were ordered by the Simmons Company to hang premachined doors, prepared at the factory rather than at the job site.

The initial decision to use premachined doors was made not by Simmons but by the Hospital Association through its architect's specifications. When Simmons originally contracted to build the hospital addition, in July of 1966, the specifications called for wooden doors to be prepared at the job site. But the contract also left the Hospital Association the option to require more expensive premachined doors should adequate financing become available. Thus by signing the contract Simmons agreed to install prefabricated doors if asked to do so. The company thereby bound its own hands, participating affirmatively in the crucial decision. In August financing did be come available and a change order was issued calling for the premachined doors.

Simmons ordered 800 premachined doors from the Anderson Wood Products Company, and three months later 80 of the doors arrived at the construction site. A Simmons vice president, "suspecting that these prefabricated doors were going to become a problem," contacted the company's attorney for advice. And a carpenters' union business agent soon thereafter did raise very strong objections to the deprivation of traditional unit work. "After being apprised of the fact that premachining was required by the specifications, he stated that the union's members employed by Simmons Company would not hang, i. e. install, the doors."⁵ Somewhat more than a week later, the company's job superintendent requested that a union member begin to hang some of the doors. But the carpenter replied that there was still "a problem" about them and refused.

The union's ground for refusing to install the premachined doors was that to do so would violate its bargaining agreement with Simmons. There was, however, no specific work preservation clause in the agreement relating to the machining of doors prior to hanging.⁶ Thus the union had to rely on an implied agreement to preserve work traditionally performed by the carpenters on the job site — or, at least, an implied agreement to negotiate compensation when prefabricated doors are to be installed.

After the first refusal to hang the doors, the union initiated several attempts to solve the problem through bargaining rather than litigation or continued confrontation. Its attorney got in touch with the company's attorney and suggested that the doors might be hung if the parties could negotiate a premium to be paid for the work lost. On more than one occasion this opening proposal was made, but the company gave no substantive response and proceeded to file an unfair labor practice charge against the union. Twice thereafter there were requests to hang the doors and similar refusals by the carpenters. Finally, when the company's unwillingness to negotiate a compromise solution must have been clear, the union gave in and hung all of the premachined doors in the hospital addition.

Both the trial examiner and the Board found that the union business agent's "threat" to refuse installing the premachined doors constituted restraint and coercion within Section 8(b) (4) (ii), and that the initial refusals to hang the doors constituted a "refusal in the course of * * * employment" under Section 8(b) (4) (i). However, the trial examiner found that no unfair labor practice had been committed under Section 8(b) (4). He concluded that the union had not acted with a "secondary" cease-doing-business objective violative of subsection (B). The Board reversed, finding that the carpenters' actions were indeed prohibited "secondary" pressure against Simmons. It relied solely on its "right to control" test. The one crucial factor, it said, was that Simmons had no control over the type of doors to be installed and thus over the substance of the union's grievance. In its formal opinion, the Board considered no other factors whatever in reaching its result. It concluded that simply because "control" lay with the hospital the "Simmons Company was a neutral with respect to the assignment of this work. Hence, the pressure exerted against Simmons Company, the secondary employer, was for the purpose of forcing it to cease doing business with the Hospital and forcing the Hospital to cease doing business with Anderson Wood Products Company for the furnishing of premachined * * * doors."⁷

II

Only eight months ago, this court held in a similar case that exclusive reliance on the "right to control" test was impermissible. Local Union No. 636, United Assn of Journeymen & Apprentices of Plumbing & Pipefitting Industry v. NLRB, 139 U.S.App.D.C. 165, 430 F.2d 906 (1970). In that decision we directly followed our two other sister circuits which recently have spoken on the issue. American Boiler Manufacturers Assn v. NLRB, 8 Cir., 404 F.2d 556, 560-561 (1968); NLRB v. Local Union No. 164, Int. Brotherhood of Electrical Workers, 3 Cir., 388 F.2d 105, 109 (1968). In all of these cases, the union exerted pressure on its members' employer to regain unit...