Sachs v. LOCAL U. NO. 48, UNITED ASS'N OF J. & A. OF PLUMB., ETC.

• Decision Date: 26 January 1972
• Docket Number: No. 71-1869.,71-1869.
• Citation: 454 F.2d 879
• Parties: David C. SACHS, Acting Regional Director of Region 5 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellant, v. LOCAL UNION NO. 48, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, and Local Union No. 438, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

454 F.2d 879 (1972)

David C. SACHS, Acting Regional Director of Region 5 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellant, v. LOCAL UNION NO. 48, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, and Local Union No. 438, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Appellees.

No. 71-1869.

United States Court of Appeals, Fourth Circuit.

Argued January 4, 1972.

Decided January 26, 1972.

Marvin Roth, Washington, D. C., Supervisory Atty. (Peter G. Nash, Gen. Counsel, Julius G. Serot, Asst. Gen. Counsel, and Franklin H. Goldberger, Atty., N. L. R. B, on brief), for appellant.

John J. Hirsch, Baltimore, Md. (Paul E. Gaeng, Baltimore, Md., on brief), for Local Union No. 48.

Cosimo C. Abato, Baltimore, Md. (Anthony A. Abato, Jr., and Bracken & Abato, P. A., Baltimore, Md., on brief), for Local Union No. 438.

Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.

BUTZNER, Circuit Judge:

The National Labor Relations Board appeals from an order of the district court denying an injunction, which the Board sought pursuant to § 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l) (1970),¹ pending resolution of charges filed with the Board by George Koch Sons, Inc. We vacate the judgment dismissing the action and remand for further proceedings.

The Board alleged that the General Electric Company had awarded a contract to Koch for the manufacture and installation of industrial finishing systems at a G. E. plant near Baltimore, Maryland. Koch subcontracted with Phillips Plumbing & Heating Company for the installation of piping at the job site, including pretested, prefabricated pipe. The Board charged that the two unions named as defendants in this action² engaged in secondary boycotts in violation of § 8(b) (4) (i) (ii) (B) of the Act³ by ordering their members to refuse to install the prefabricated materials. The unions denied that their conduct constituted a boycott of Koch's products, and insisted they were engaged in primary activity against Phillips for the preservation of work traditionally performed by plumbing employees in Maryland. The unions based their defense on the following work preservation clause in their collective bargaining agreement with Phillips:

"All pipe of any size used on the job shall be cut and threaded by journeymen and apprentices either by machine or by hand and all fittings to be made up (of any size), caulked, or otherwise, fitted to any pipe, must be done on the job or in the contractor\'s shop by journeymen or apprentices."

The district judge, noting that Phillips had entered into a contract with Koch to install prefabricated pipes while subject to a work preservation agreement, considered that the case turned on the Board's right to control test—did Phillips have sufficient control over the disputed work to grant the unions what they wanted? Relying on a number of recent cases,⁴ the district court held that the right to control test was no longer a viable means of discerning whether union activity is primary or secondary. Accordingly, it denied the Board's application for an injunction. We vacate and remand because we believe the case has broader ramifications than the validity of the Board's rather simplistic right to control test.

As a preface, we note that under § 10(l) of the Act, it is not the function of the district court to decide the merits of the unfair labor practice case, for this issue is reserved exclusively for the Board subject to review by the court of appeals. The inquiry of the district court was limited to whether the Board had reasonable cause to believe that the unions were violating the Act. Malone v. United Steel Workers of America, 432 F.2d 554 (4th Cir. 1970). We, too, must refrain from deciding the case on the merits. We hold no more than that the Board's complaint, the union's answer, and the stipulated facts establish that the Board had reasonable cause to believe the unions were violating the Act, and for that reason an injunction should issue pending final determination of the case.

The leading cases distinguishing illegal secondary product boycotts from lawful primary action to preserve work are National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), and Houston Insulation Contractors Association v. NLRB, 386 U.S. 664, 87 S.Ct. 1278, 18 L.Ed.2d 389 (1967), in which the Court found no violation of the Act. Both cases involved refusals of the unions to allow its members to install prefit or precut material on construction jobs in violation of work preservation clauses in collective bargaining agreements. In National Woodwork the Court held that to differentiate between primary and secondary activity, inquiry must be made "into whether, under all the surrounding circumstances, the Union's objective was preservation of work for the contractor's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere." 386 U.S. at 644, 87 S.Ct. at 1268. "The touchstone," said the Court, "is whether . . . maintenance of the agreement is addressed to the labor relations of the contracting employer vis-à-vis his own employees." 386 U.S. at 645, 87 S.Ct. at 1268.

The Board insists, however, that neither National Woodwork nor Houston Insulation are controlling because they dealt with situations where the contracts and specifications did not call for prefabricated materials. The Board points out that National Woodwork originally involved four disputes and that in three of them the specifications required precut and prefinished doors. The Board and the court of appeals held that the union's refusal to install the specified doors was a violation of § 8(b) (4) (B) because the contractors had no control over this aspect of the work.⁵ The union, however, did not seek review of these decisions, and only the fourth dispute, in which the specifications did not provide for precut, prefinished doors, was heard by the Supreme Court. Consequently, the Court noted that the Board's right to control test was not an issue before it. 386 U.S. at 616 n. 3, 87 S.Ct. 1250.

In contrast to National Woodwork, the validity of the right to control test is an issue here. The Board suggests that this question has not yet been resolved by the Supreme Court, and that it is of sufficient moment, in itself, to support the plea for an injunction. While there is some merit to the Board's position, we believe that other factors justify relief under § 10(l).

The Board alleged, and the unions denied, that there was no labor dispute between Phillips and the unions. The Board also alleged, though this too was denied, that one of the unions "threatened Koch that it would not allow its members employed by Phillips to install . . . prefabricated piping and otherwise threatened, coerced and restrained Koch unless Phillips refrained from installation of this product." Resolution of these issues is critical in determining whether the maintenance of the work preservation clause "is addressed to the labor relations of the contracting employer vis-à-vis his own employees." 386 U.S. at 645, 87 S.Ct. at 1268. In National Woodwork and Houston Insulation, the findings of the Board provided a factual basis for answering this inquiry. Here the facts necessary to settle this issue have not been fully developed.

In National Woodwork and Houston Insulation, the contractors voluntarily used prefabricated materials on the job. Any increase in cost because they could not be used presumably fell on the contractors whose employees were protesting prefabrication, and, therefore, the economic struggle was between the contractors and...