LOCAL U. NO. 636, U. ASS'N OF J. & A. OF PLUMB., ETC. v. NLRB

• Decision Date: 29 July 1970
• Docket Number: No. 23342.,23342.
• Citation: 139 US App. DC 165,430 F.2d 906
• Parties: LOCAL UNION NO. 636, 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: U.S. Court of Appeals — District of Columbia Circuit

139 US App. DC 165, 430 F.2d 906 (1970)

LOCAL UNION NO. 636, 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. 23342.

United States Court of Appeals, District of Columbia Circuit.

Argued June 12, 1970.

Decided July 29, 1970.

Mr. Patrick C. O'Donoghue, Washington, D.C., with whom Mr. Martin F. O'Donoghue, Washington, D.C., was on the brief, for petitioner.

Mr. Ian D. Lanoff, Atty., National Labor Relations Board, of the bar of the Supreme Court of Illinois, pro hac vice by special leave of court, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Glen M. Bendixsen, Atty., National Labor Relations Board, were on the brief, for respondent.

Messrs. Kenneth C. McGuiness and Wayne S. Bishop, Washington, D.C., filed a brief on behalf of Air-Conditioning and Refrigeration Institute et al. as amici curiae.

Before WRIGHT, LEVENTHAL and MacKINNON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

The National Labor Relations Board found that the petitioner union engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (B) (1964). In finding that the union had engaged in proscribed secondary activity, the Board relied exclusively on its "right to control" test. For the reasons set out below, we believe this reliance was misplaced, and we reverse the Board's finding.

I

The facts are undisputed. At all times relevant to this case Local 636 of the plumbers' and pipefitters' union had a collective bargaining agreement with two multi-employer associations, the Metropolitan Detroit Plumbing Contractors Association and the Mechanical Contractors Association of Detroit, Inc. This contract contained a work-preservation clause which specified that "all pipe two inches (2") and under and all hanger rods are to be cut, threaded, and installed by employees on the job." The trial examiner found that "similar language has appeared in collective-bargaining contracts between the union and associations of plumbing and mechanical contractors since about 1941, and the union has successfully resisted efforts to delete it." The Board does not challenge the validity of this clause in these proceedings.

The present case has its origin in the 1964 decision by Holy Cross Hospital in Detroit to construct an addition to its building. The hospital retained an architect who designed the new addition and drew up plans and specifications for its construction. In planning the heating and air conditioning system of the new building, the architect specified individual room heating and cooling "fan coil units." These units became the focus of the present dispute.

Fan coil units contain a certain amount of piping associated with temperature control valves which are contained in each unit. This piping is less than two inches in diameter, and it can be cut, threaded and installed either at the factory or on the job site. As prepared by the hospital's architect, the specifications for the addition to Holy Cross Hospital called for the fan coil units to be "pre-piped," that is, for the piping to be installed at the factory. Furthermore, the mechanical specifications provided that the hospital's architect "shall interpret the Specifications * * * and shall decide all other questions in connection with the work."

In 1966, the hospital advertised for bids on the basis of the architect's plans and specifications, which included the fan coil provisions discussed above. Page Plumbing and Heating Company was the successful bidder, and the Board found as a matter of fact that "all bidders, including Page, were advised of this specification factory pre-piping and submitted their bids in reliance thereon." Page Plumbing was at all times a member of the Mechanical Contractors Association of Detroit, Inc. and a signatory of the collective bargaining agreement with Local 636 which included the clause preserving the installation of all pipe less than two inches in diameter for job site workers.

The ensuing clash was completely predictable. Holy Cross Hospital sought to hold Page to the contract specifications of factory pre-piped fan coil units. The union, in turn, sought to hold Page to the collective bargaining agreement. When the hospital refused Page's request that the piping be done on the job site, the union induced the employees of Page at the Holy Cross Hospital job site not to handle the factory preassembled units.

II

On the basis of these facts, the Board, applying its "right to control" test, found the union guilty of an unfair labor practice:

"It is obvious from the foregoing facts that Page, although willing to do so, was powerless to comply with Respondent\'s demand. As the Hospital through its architect would not relax or change the specifications for the job, a strike against Page would be fruitless in terms of achieving Respondent\'s objective, unless Page\'s customer, the Hospital or its architect, was thereby persuaded to change the contract specifications so as to permit Page\'s employees to fabricate certain piping on the job. In the real and practical sense Page was a neutral; it was caught between the conflicting demands of the Respondent and the Hospital, and was without power to resolve the conflict in the manner desired by Respondent. Section 8(b) (4) of the Act was intended to protect `employers in the position of neutrals between contending parties.\' Inasmuch as Page was incapable of complying with respondent\'s demands, an object of Respondent\'s conduct directed at Page must inevitably have been to cause Page to rescind its contract and thus cease doing business with the Hospital, a violation of Section 8(b) (4) (B) of the Act."

(Footnotes omitted; emphasis by the Board.)

We think the Board's analysis is completely wide of the mark.¹ To assert that Page lacked the "right to control" here requires a most careful artificial structuring of the facts. Before Page entered into the contract with the hospital, Page had a contractual commitment to the union to reserve certain work for job site workers. During the negotiations with the hospital over the specifications in the bid, Page was, of course, apprised of the specifications which conflicted with its collective bargaining agreement with the union. Eyes open, Page then signed the hospital contract.

The Board seeks to disregard these threshold facts, and focus exclusively on Page's predicament after it had signed the hospital's contract. But Page created its own predicament, and the Board's approach would encourage and reward such behavior. Judge Lasker accurately appraised a similar situation:

"It would be unthinkable to apply the `right to control\' test to facts such as those just outlined. To do so would be to encourage * * * employers to undermine their collective bargaining agreements by actively soliciting contracts whose very terms called for conduct violative of those trade agreements * * *. Manufacturers and general contractors, too, would be tempted to insert all manner of specification and standards into their licenses and contracts with a total disregard of subcontractors\' commitments to their respective unions."

Danielson v. Painters District Council No. 20, etc., S.D.N.Y., 305 F.Supp. 1108, 1115 (1969).

Moreover, the Board's application of the "right to control" test completely ignores the teaching of the Supreme Court in National Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). In that case, the Court held that the proper basis for distinguishing primary from secondary union activity was

"an inquiry into whether, under all the surrounding circumstances, the Union\'s objective was preservation of work for unit employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, * * * the boycotted employer would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer * * * for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer thus making the agreement or boycott secondary in its aim. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-à-vis his own employees. * * *"

386 U.S. at 644-645, 87 S.Ct. at 1268. (Footnotes omitted; emphasis added.)

Thus the National Woodwork test focuses on whether the employees have a dispute with their own employer. Is it proper to bring pressure to bear on him because it is his dispute? Or is he a "neutral" on whom the union is bringing pressure to attain objectives elsewhere? In our view, the "right to control" test, as formulated by the Board, is irrelevant to this determination and tends to focus attention on the wrong factors. The union's position is that it is seeking to preserve the work of Page's employees from being...