National Labor Relations Board v. Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local Union No 638

• Decision Date: 22 February 1977
• Docket Number: No. 75-777,75-777
• Citation: 51 L.Ed.2d 1,429 U.S. 507,97 S.Ct. 891
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPEFITTERS OF NEW YORK AND VICINITY, LOCAL UNION NO. 638, etc
• Court: U.S. Supreme Court

429 U.S. 507

97 S.Ct. 891

51 L.Ed.2d 1

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPEFITTERS OF NEW YORK AND VICINITY, LOCAL UNION NO. 638, etc.

No. 75-777.

Argued Oct. 6, 1976.

Decided Feb. 22, 1977.

Syllabus

A subcontractor (Hudik) had a subcontract with a general contractor (Austin) for the heating, ventilation, and air conditioning work in the construction of a home for the aged. The subcontract job specifications provided that Austin would purchase certain climate control units manufactured by Slant/Fin Corp. to be installed in the home, and that the internal piping in these units was to be cut, threaded, and installed at the Slant/Fin factory. However, the collective-bargaining agreement between respondent union and Hudik provided that pipe threading and cutting were to be performed on the jobsite. When the units arrived on the job, the union steamfitters employed by Hudik refused, at the union's instigation, to install them on the ground that the factory-installed internal piping violated the collective-bargaining agreement and was steamfitters' work. Austin then filed a complaint with the National Labor Relations Board, alleging that the union had committed an unfair labor practice under § 8(b)(4)(B) of the National Labor Relations Act, which makes it an unfair labor practice for a union to induce employees to refuse to handle particular goods or products or coerce any person, where "an object" of the inducement or coercion is to require any person to cease doing business with any other person, provided that the section shall not be construed to make unlawful any primary strike or primary picketing. Specifically, Austin charged that the union's action was taken to force Hudik to cease doing business with Austin and to force Hudik and Austin to cease dealing with Slant/Fin's products. The Administrative Law Judge held that the union had violated § 8(b) (4)(B), because in seeking to enforce the collective-bargaining agreement and to obtain the work the union's object was in reality to influence Austin by exerting pressure on Hudik, an employer who had no power to award the work to the union. The NLRB agreed, noting that although the union's refusal to install the climate-control units was based on a valid work-preservation clause in the collective-bargaining agreement, the pressure exerted by the union on Hudik was undertaken for its effect on other employers, and thus was secondary and prohibited by § 8(b)(4)(B). The Court of Appeals set aside the NLRB's cease-and-desist order, disagreeing with the NLRB on both legal and factual grounds. Held: The union's refusal to install the climate-control units was secondary activity prohibited by § 8(b)(4)(B), rather than primary activity beyond the reach of that provision. Pp. 514-532.

(a) The existence of a work-preservation agreement is not an adequate defense to a § 8(b)(4)(B) unfair labor practice charge. To hold, as the Court of Appeals did, that a work stoppage is necessarily primary and not an unfair labor practice when it aims at enforcing a legal promise in a collective-bargaining agreement is inconsistent with the statute as construed in Local 1976, United Brotherhood of Carpenters v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (Sand Door ), a construction that was accepted and that has never been abandoned by Congress. Pp. 514-521.

(b) The Court of Appeals also erred in taking the view that the NLRB's "control" test, under which the union commits an unfair labor practice under § 8(b)(4)(B) when it coerces an employer in order to obtain work that the employer has no power to assign, is invalid as a matter of law because it fails to comply with the standard of National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357, that the union's conduct be judged in light of all the relevant circumstances. It does not appear that either the Administrative Law Judge or the NLRB, in agreeing with him, articulated a different standard from that recognized as proper in National Woodwork, or that the NLRB, in applying its control test failed to consider all of the relevant circumstances. Pp. 521-528.

(c) The record amply supports the NLRB's conclusion that the union's objectives were not confined to the employment relationship with Hudik but included the object of influencing Austin in a manner prohibited by § 8(b)(4) (B). Pp. 528-531.

(d) The Court of Appeals was obliged to review the case under the statutory standard of whether the NLRB's findings were "supported by substantial evidence on the record considered as a whole," and thus in reweighing the facts and setting aside the NLRB's order, the Court of Appeals improperly substituted its own views of the facts for those of the NLRB. Pp. 531-532.

172 U.S.App.D.C. 225, 521 F.2d 885, reversed.

Norton J. Come, Washington, D.C., for petitioner.

Laurence Gold, Washington, D.C., for respondent.

Mr. Justice WHITE delivered the opinion of the Court.

Under § 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4) (B),¹ a union commits an unfair labor practice when it induces employees to refuse to handle particular goods or products or coerces any person engaged in commerce, where "an object" of the inducement or coercion is to require any person to cease doing business with any other person. A proviso, added to § 8(b)(4)(B) in 1959, declares that the section "shall (not) be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." Although without the proviso the section on its face would seem to cover any coercion aimed at forcing a cessation of business, the National Labor Relations Board (Board) and the judiciary have construed the statute more narrowly, both before and after the proviso was added, to prohibit only secondary, rather than primary, strikes and picketing.²

Among other things, it is not necessarily a violation of § 8(b)(4)(B) for a union to picket an employer for the purpose of preserving work traditionally performed by union members even though in order to comply with the union's demand the employer would have to cease doing business with another employer. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967) (National Woodwork ). The question now before us is whether a union seeking the kind of work traditionally performed by its members at a construction site violates § 8(b)(4)(B) when it induces its members to engage in a work stoppage against an employer who does not have control over the assignment of the work sought by the union. More specifically, the issue is whether a union-instigated refusal of a subcontractor's employees to handle or install factory-piped climate-control units, which were included in the general contractor's job specifications and delivered to the construction site, was primary activity beyond the reach of § 8(b)(4)(B) or whether it was secondary activity prohibited by the statute. As we shall see, this issue turns on whether the boycott was "addressed to the labor relations of the contracting employer vis-a-vis his own employees," National Woodwork, supra, at 645, 87 S.Ct., at 1268, and is therefore primary conduct, or whether the boycott was "tactically calculated to satisfy union objectives elsewhere," id., at 644, 87 S.Ct., at 1268, in which event the boycott would be prohibited secondary activity.

I

Austin Co., Inc. (Austin), was the general contractor and engineer on a construction project known as the Norwegian Home for the Aged.³ As the result of competitive bidding, Austin awarded a subcontract to Hudik-Ross Co., Inc. (Hudik), to perform the heating, ventilation, and air-conditioning work for the Norwegian Home construction. Hudik employs a regular complement of about 10 to 20 steamfitters. For many years, these employees have been represented by respondent Enterprise Association (Enterprise), a plumbing and pipefitting union. Over the years Hudik and Enterprise have entered into successive collective-bargaining agreements, and such an agreement was in force at the time that the dispute involved in the present litigation arose. Austin had no agreement with Enterprise regarding the work to be done on the Norwegian Home project.

The subcontract between Austin and Hudik incorporated Austin's job specifications. These specifications provided that Austin would purchase certain climate-control units manufactured by Slant/Fin Corp. (Slant/Fin) to be installed in the Norwegian Home. The specifications further provided that the internal piping in the climate-control units was to be cut, threaded, and installed at the Slant/Fin factory. At the time that Hudik entered into the subcontract with Austin, Hudik was aware that its employees would be called upon to install the Slant/Fin units but not to do the internal piping work for the units on the jobsite.

Traditionally, members of respondent union have performed the internal piping on heating and air-conditioning units on the jobsite. Also, Rule IX of the then-current collective-bargaining contract between Hudik and Enterprise provided that pipe threading and cutting were to be performed on the jobsite in accordance with Rule V, which in turn specified that the work would be performed by units of two employees.⁴ There had been similar or identical provisions in previous collective-bargaining contracts. There is no dispute that the work designated by Austin's specifications to be performed at the Slant/Fin factory was the kind of cutting and threading work referred to in Rule IX.

When the Slant/Fin units arrived on the job, the union steamfitters refused to install them. The business agent of the union told Austin's superintendent that the steamfitters "would not install the Slant/Fin units because the piping inside the units was steamfitters' work." Enterprise Association of Steam...