Local 60, United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1282 (N.L.R.B. 1962)

1282 DECISIONS OIL NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that.
WE WILL NOT threaten our employees with reprisals if they select a union to
represent them.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
NOPCO CHEMICAL COMPANY,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered. defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE , Atlanta, Georgia, Telephone
Number, Trinity 6-3311, Extension 5357, if they have any question conceining this
notice or compliance with its provisions.
Local 60, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO and Binnings Construction Com-
pany, Inc. Case No. 15-C61-133. Septembc? 08, 1962
DECISION AND ORDER
On July 3, 1961, Trial Examiner A. Norman Somers issued has
Intermediate Report in the above-en titled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
and finds no prejudicial error. The rulings are affirmed. The Board
has considered the Intermediate Report, the exceptions and the brief,
and the entire record in the case, and finds merit in the General Coun-
sel's exceptions. Accordingly, the Board adopts only those findings,
conclusions, and recommendations of the Trial Examiner which are
consistent with this Decision and Order.
138 NLRB No. 116.
LOCAL 60, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1283
Contrary to the Trial Examiner, we find that the Respondent
Union violated Section 8 (b) (4) (i) and (ii) (A) of the Act. As found
by the Trial Examiner and reflected in the record, on April 30, 1959,
the Employer, Binnings Construction Company, 'was awarded a con-
tract for the construction of a sewage disposal plant at Norco,
Louisiana. On the same clay, the Union's contract with the New
Orleans chapter of the Associated General Contractors, of which the
Employer was a member, expired. The Employer commenced work
on the project on July 20, 1960. It subcontracted most of the work
but retained the plumbing and pipefitting, hiring two members of
the Respondent to do this work. Shortly after Christmas 1960,
Bertoneau, the union business manager, called Mr. Binnings, presi-
dent of the Employer, and told him that the Company would have
to subcontract such work because a contract with the Respondent
required it. Binnings denied that there was such a contract, but
said that he would check with the local representative of Associated
General Contractors.'
On February 23, 1961, the Respondent began to picket the construc-
tion site with a sign proclaiming that a plumbing subcontractor
under contract to the Respondent was not employed on the job. The
Respondent also distributed a leaflet among Binnings' employees at
the site containing a message that the Respondent was protesting the
Employer's refusal to follow the "usual practice" of subcontracting
the plumbing and pipefitting work. After the Employer filed the
charge herein, the Respondent wrote a letter to the Regional Director
of the Fifteenth Region which asserted that the only purpose of the
picketing was to protest the Employer's refusal to subcontract the
disputed work and that a new picket sign would be used to show
this purpose. Picketing with a new sign bearing a legend reflecting
this alleged purpose, continued until April 14, 1961.
On this date, Barker, the union attorney, called Binnings and was
informed that the Company would subcontract the plumbing and
pipefitting work. When Barker asked Binnings whether the con-
tract would go to a union contractor, he replied that it would. Two
days later Bertoneau after being informed by Barker of the content
of his conversation with Binnings, called Binnings, who testified that
he replied affirmatively to Bertoneau's question whether the contract
would go to a union contractor.' Thereupon, Bertoneau promised
1 The record discloses that the Employer did not enter into another agreement with the
Respondent after April 30, 1959 Although the General Counsel excepted to the Trial
Examiner's finding that the prior agreement contained a provision which required the
Employer to subcontract the plumbing and pipefitting work to union plumbing contractors,
he recognizes that the critical issue in this case is whether the Respondent picketed the
Employer to obtain such an agreement after the earlier contract expired In view thereof,
we need not pass on this exception
2 The contract was subsequently awarded to Eugene Calhoun , a union contractor
662353-63-vol. 138-82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the pickets would be removed. There has been no picketing
since April 16, 1961.
On the basis of the facts as found by the Trial Examiner and the
testimony of Binnings, which on the record as a whole we find worthy
of belief, and hereby credit,' we find that at all times the true object
of the Respondent was to compel the Employer or agree to sub-
contract the plumbing and pipefitting work to a plumbing contractor
having an agreement with the Respondent' This object, we think
is plainly revealed by the leaflet and initial picket sign, which was
changed only after the charge herein was filed, and the conversations
of the union representatives with the Employer after the change in
the picket sign, showing a concern as to whether the subcontracting
was to be with a union subcontractor. The Respondent's contention
that it only desired to have the work subcontracted to a plumbing
contractor, and that it did not care whether the contractor was union
or nonunion, is clearly refuted by Respondent's admission that it
would not supply men to a nonunion contractor and that members
of the Master Plumbing Association had complained to Respondent
about general contractors doing this type of work. In these circum-
stances , we conclude that the Respondent's object in picketing the
Employer was to force the Employer to agree to subcontract the
plumbing and pipefitting work to a union subcontractor.
In Colson and Stevens Construction Co., Inc.,' we held that the
construction industry exemption in Section 8 (e) does not remove
picketing for the purpose of compelling an agreement such as Re-
spondent sought herein from the prohibition of Section 8(b) (4) (A).
It accordingly follows, and we find, that the Respondent, by picket-
ing to force Binnings to agree to subcontract plumbing and pipe-
fitting work to a union subcontractor violated Section 8(b) (4) (i)
and (ii) (A) of the Act.'
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the Act, as amended, the National Labor Relations Board hereby
orders that Respondent, Local 60, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the
3 Where the Trial Examiner does not resolve all issues the Board may, of course, make
all findings necessary for the disposition of a case. Highway Truck Drivers & Helpers,
Local 107, et at. (Horn & Hardart Baking Co.), 115 NLRB 1184, 1185.
Cf. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult
and Al Picoult d/b/a Jack Picoult ), 137 NLRB 1401.
6137 NLRB 1650.
6 For the reasons fully set forth in Colson and Stevens Construction Co., Inc., supra,
we respectfully differ with the conclusion of the district court dismissing the petition for
an injunction under Section 10(1) based on the charge in this case. John F. LeBus v.
Local 60, United Association of Journeymen , et al . (Binnings Construction Company,
Inc.), 193 F. Supp. 392 (D.C. D. La.).
LOCAL 60, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1285
United States and Canada, AFL-CIO, its officers, representatives,
successors, agents, and assigns shall:
1. Cease and desist from :
Engaging in, or inducing or encouraging employees of Binnings
Construction Company, Inc., or any other employer to engage in, a
strike, or threatening, coercing, or restraining Binnings Construc-
tion Company, Inc., or any other employer, by a strike or picketing,
where in either case an object thereof is to force or require said em-
ployer to enter into any agreement which is prohibited by Section
8(e).
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act.
(a) Post in conspicuous places at the Respondent Union's business
offices, meeting halls, and all places where notices to members are
customarily posted, copies of the notice attached hereto marked
"Appendix."' Copies of said notice, to be furnished by the Regional
Director for the Fifteenth Region, shall, after being duly signed by
the authorized representative of the Respondent Union, be posted
by the Respondent Union immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter. Reason-
able steps shall be taken to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Fifteenth Region for posting by Binnings Construc-
tion Company, Inc., the Company willing, at all locations where
notices to its employees are customarily posted.
(c) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith.
7In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF
BINNINGS CONSTRUCTION COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL NOT engage in, induce or encourage employees of
Binnings Construction Company, Inc., or any other employer,
to engage in a strike, or threaten, coerce or restrain Binnings
Construction Company, Inc., or any other employer, by a strike
or picketing, where in either case an object thereof is to force
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or require said employer to enter into any agreement which is.
prohibited by Section 8(e).
LOCAL 60, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO,
Labor Organ'L2ation.
Dated---- ------------ By--------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive clays from the
date of posting , and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board' s Regional
Office, 701 Loyola Avenue, New Orleans 12 , Louisiana , Telephone
Number, 529-2411, if they have any question concerning this notice
or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard in New Orleans, Louisiana,
on May 22, 1961. The issue was whether the Union as alleged, violated Section
8(b)(4)(i)(ii)(A), which forbids strike conduct and threats with an object of
forcing an employer to enter into a hot-cargo agreement prohibited by Section 8(e).
The parties argued orally and the General Counsel has filed a brief 1 Upon the entire
record, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING EMPLOYER
Binnings Construction Company, Inc., a Louisiana corporation , with its principal
offices in New Orleans , is a building and construction contractor , having an inflow
of materials from out of the State , exceeding $50,000 a year . It is found that
Binnings is engaged in commerce and 'in an industry affecting commerce within
the meaning of Sections 2(6) and ( 7) and 8 (b) (4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, hereinafter called Local 60, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The issue dispositive of this case is whether the conduct attributed to Local 60
constitutes the violation alleged. Without intending to foreclose any party in regard
to any factual issue whose resolution should become material to the disposition of
this case, I would say that the real dispute is not ,over whether Local 60 applied the
economic pressures described in 8(b) (4) (i) (ii), but over whether it did so with
an object as alleged in the complaint. The object imputed to Local 60 in this
proceeding is that proscribed in (A)-to force Binnings to enter into a hot-cargo
agreement prohibited by Section 8(e). The agreement allegedly sought by Local
60 .is one whereby Binnings , as general contractor of a sewage disposal plant, would
1 Respondent , 8 days after expiration of the time allotted for filing briefs filed a reply
brief to that of the General Counsel, without statement of reason for failure timely to
file an original one or request for leave to file a replying one. The objection thereto by
the Charging Party is sustained , and the reply brief has been given no consideration
although physically permitted to remain in the files
LOCAL 60, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1287
let out the plumbing and pipe installation to plumbing subcontractors, "who are
under contract with Respondent." The only factual item in genuine controversy,
as I see it now at least, is the quoted part at the end of the preceding sentence.
Local 60's contention on that score is that its sole object was that Bmmngs, which
was doing that work with its own employees, let it out to plumbing contractors,
regardless of whether or not they were "union" (i e., under contract with it). On
the legal issue it contends that even if an object had been that claimed by the
General Counsel, it would not be in violation of (A) of 8(b) (4), under the
exemption of Section 8(e) for the construction trades.
This controversy has ramifications which call for reversing the usual order and
determining the legal issue first. Binnings is a member of Associated General
Contractors (AGC). Until April 30, 1959, Local 60 had an agreement with AGC,
,embodied in a broadly phrased memorandum, under which member contractors, who,
like Binnings, are engaged in sewage disposal construction, were to sublet the
plumbing and pipe installation on their projects to plumbing contractors under
contract with Local 60
On expiration on April 30, 1959, the agreement was not renewed because of Local
60's dissatisfaction with its implementation. In the summer of 1960, Binnings began
work on the project here involved-a sewage disposal plant for the parish of St.
,Charles in Norco, Louisiana. It let out some aspects of the work to subcontractors
and others it undertook itself. Among the latter was the plumbing and pipe installa-
tion. By Christmas of 1960 it engaged two individuals for that work, a supervisor
and a rank-and-file man. They were not plumbers but pipefitters, and here is the
paradox: each was a member of Local 60, which embraces both crafts. At that
time, Binnings (I am now referring to the president whose name is used inter-
changeably with his corporation, as the sense indicates) was spoken to by Edward
Bertoneau, business agent of Local 60, concerning how he was handling that
aspect of the work. The details of the conversation need not concern us now. On
February 23, 1961, Local 60 began picketing the sewage disposal site with the
following sign:
NO PLUMBER SUBCONTRACTOR IN AGREEMENT WITH LOCAL 60
EMPLOYED ON THIS JOB BY BINNINGS CONSTRUCTION CO. NO
GRIEVANCE WITH ANY OTHER CONTRACTORS ON THIS JOB.
It also distributed among Binnings ' employees at the project the following leaflet:
PLUMBERS & STEAMFITTERS LOCAL #60 IS MAINTAINING THIS
PICKET LINE TO PROTEST AGAINST BINNINGS CONSTRUCTION
COMPANY. BINNINGS CONSTRUCTION COMPANY REFUSES TO
FOLLOW THE USUAL PRACTICE OF USING A PLUMBING SUBCON-
TRACTOR TO DO PLUMBERS' & PIPEFITTERS' WORK, THUS CAUSING
OUR CRAFT TO LOSE WORK.
WE HAVE NO DISPUTE AT ALL WITH LINDSEY & MORGAN, THE
ELECTRICAL CONTRACTOR. WE URGE THE EMPLOYEES OF LIND-
SEY & MORGAN TO GO TO WORK. THIS WILL HELP OUR CAUSE
BY HELPING KEEP OUR .PICKET LINE LEGAL
This activity was discontinued on February 28, in compliance with a temporary
injunction issued by a State court in a suit brought by Binnings under the State's
antitrust laws. The claim, in essence , was that the above conduct was "pursuant
to a plan and conspiracy existing" between Local 60 and plumbing contractors in
the area to give the latter a "monopoly on all plumbing contracting work to be
performed within the territroy subject .to the jurisdiction of . . . Local 60." Local
60 resumed this activity on March 16, after the State court dismissed the suit be-
cause of paramountcy of Federal jurisdiction. Thereupon Binnings filed charges
with the Regional Office, including .the one on which the complaint in this proceed-
ing was issued.
We highlight the relevant events between the time the activity was resumed, on
March 16, and the complaint in this proceeding issued, on May 10.
On March 23, counsel for Local 60 wrote the Regional Office, claiming the
purpose was to have Binnings sublet the disputed work to a plumbing subcontractor,
regardless of whether under contract with Local 60, and indicating that the picket
,sign was being changed to express the assertedly true purpose, as follows:
NO PLUMBING SUBCONTRACTOR IS EMPLOYED ON THIS JOB
BY BINNINGS CONSTRUCTION CO WE HAVE NO GRIEVANCE WITH
ANY OTHER CONTRACTOR ON THIS JOB.
From March 24 until April 14, Local 60 picketed with the new sign . It ceased
all such activity, picketing and handbill distribution, on the afternoon of April 14.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This was the day on which the 10(1) petition in this proceeding was dismissed by
the district court 2 This last warrants dwelling upon for a moment. The charges
filed by Binnings were the one in this proceeding, and another in Case No. 15-
CD-21. In the charge filed in this case, Binnings claimed a violation of (A) and
(B), and in the other a violation of (D).3 The petition under 10(1) filed by the
General Counsel before issuance of a complaint in either case, alleged that inves-
tigation showed prima facie violations of (A) and (D)-(A) because Local 60 had
as an object to compel Binnings to agree to sublet the disputed work to plumbing
subcontractors under contract with Local 60, and (D) because Local 60 had as an
object to compel Binnings to assign it to one craft as against another (plumbers
versus pipefitters). On April 14, District Judge Wright handed down his decision
(supra footnote 2) dismissing the petition-the (A) portion because he did not
think that provision was violated even if Local 60 had as an object to compel the
kind of agreement as alleged, and (D) because the Board had not yet made a
10(k) award of the work assignment involved in the underlying "jurisdictional"
dispute (with some reservations concerning whether that term applies where the same
union embraces ,the two rival crafts)
On the day the dismissal took place, Binnings wired Local 60 that "in order
to remain in business," it was subcontracting the work "to a plumbing sub-con-
tractor." In two telephone conversations, the first that afternoon, which was on a
Friday, with counsel for Local 60, and then on Sunday, with Business Agent Ber-
toneau, the details of which do not concern us in the present context, Binnings in-
dicated that he was letting the work out to a "union subcontractor." Bertoneau
said there would be no more picketing, and there has not been.
The complaint herein, issued on May 10, alleges a violation of (A), and we are
told on the record that the proceeding involving an alleged violation of (D), is still
"pending."
What have now then is one of the two companion and factually interlinked
cases: involved in each is the same situation, under appraisal is the identical conduct,
and in sole dispute is the motivation, one alleging an object cognizable under (A)
and the other under (D). It is manifest that the factual issue in one is so inter-
twined with that in the other that the resolution of the one could, however we might
seek to avoid it, either dispose of the corresponding issue in the other, or at the very
least seriously affect its posture. Such a backdoor disposition of a controversy
not before us would seem best avoided unless indispensable to the disposition of
the controversy before us is the resolution of the factual issue. That, in turn, depends
upon how we are to resolve the legal issue.
Coming to the legal issue, it is not controverted that if the agreement sought by
Local 60 contemplated subletting the disputed work only to union plumbing sub-
contractors, then the attendant boycott of nonunion ones would make it a hot-cargo
agreement within the meaning of Section 8(e). But that is not the issue. The issue
is whether it is one within its prohibition, for to come within the condemnation of
(A) the conduct must be with an object of "forcing or requiring any employer ...
to enter into any agreement which is prohibited by section 8(e)." [Emphasis sup-
plied.] Section 8(e) provides:
It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or refrain from . . . doing
business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent
unenforcible and void: Provided, That nothing in this subsection (e) shall
apply to an agreement between a labor organization and an employer in the
construction industry relating to the contracting or subcontracting of work to
be done at the site of the construction, alteration, painting, or repair of a building,
structure, or other work:
It would seem as manifest as language can make it that the kind of "agreement
which is prohibited by section 8(e)" in the body is not thus prohibited under the
proviso relating to the construction industry. Hence, the agreement allegedly sought
to be exacted by Local 60, is one which in appropriate paraphrase of (A), "is not
prohibited by section 8(e)."
On the basis of the unequivocal language of the 8(e) proviso, the General Coun-
sel's contention that 8(b)(4) conduct, when engaged in with an object of exacting
2 John F LeBus v. Local 60, United Association of Journeymen, et al. (Binnings Con-
struction Company, Inc.), 193 F.'Supp.'392 (D C E. La )
3 All references to parenthesized capital letters, unless otherwise indicated, are to Sub-
divisions of 8(b) ( 4) (1) and (ii).
LOCAL 60, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1289'
such an agreement in the construction industry, falls within the proscription of (A),
has been rejected in all three instances in which it has thus far been considered, by
District Court Judge Wright in the 10(1) proceeding in this case (supra, footnote
2), by a fellow Trial Examiner in the Colson and Stevens case 4 and by District
Judge Kilkenny in the 10(1) proceeding in the Colson and Stevens case.5
The General Counsel attempts to overcome the effect of the language of 8(e),,
as he did also in the other cases, with the contention that the immunity of the
proviso is confined to "limited voluntary agreements." There is nothing on the
face of Section 8(e) to indicate such a limitation. For his position he relies on
legislative history. It may be questioned whether resort to legislative history is,
here at all permissible under the classic canon that "Congressional purpose, as
manifested by text and context, is not rendered doubtful by legislative history"'
(Addison v. Holly Fruit Products, 322 U.S. 607, 615), and that "there is no, room
for an implication when the plain provisions of the statute are to the contrary."
50 Amn. Juris. 238 (Statutes 243), citing Walker v. Spokane, 62 Wash 310, 113
p. 775.
The foregoing apart, the basis for the implied limitation is the portion of the
legislative history reaffirming the applicability of Sand Door doctrine, as enunciated
by the Supreme Court in Local 1976 United Brotherhood of Carpenters etc. V.
N.L.R.B., 357 U.S. 93, to the effect that picketing to enforce a hot-cargo contract,
even though the contract be itself legal, is not permissible under the secondary boy-
cott prohibition, then embodied in (A) and now in (B) of 8(b)(4). This is the
basis for the statement in the House conference report,6 substantially repeated by
Senator Kennedy in his postconference report to the Senate,7 that "the proviso
applies only to Section 8(e) and therefore leaves unaffected the law developed
under Section 8(b)(4)." At that time, 8(b)(4) had no provision in (A) such
as the one her involved, and the only "law developed under Section 8(b) (4)" in
respect to hot-cargo agreements was that which, as in Sand Door, involved conduct
with a secondary boycott object as proscribed in old (A) and present (B). The
"law developed under Section 8(b)(4)" was to the effect that picketing to compel
an employer to "cease doing business" with another was not immune under old
8(b) (4) (A) even if engaged in to enforce an existing, though legal, hot-cargo agree-
ment. Applying the Sand Door doctrine, Judge Wright, who dismissed the (A)
allegation in the 10(1) petition in this case (supra, footnote 2) in an earlier case
(Baltimore Contractors, Inc.), held that it was no defense to an allegation of sec-
ondary boycott activity in violation of (B) that the picketing was in enforcement
of a construction trades hot-cargo agreement, even though the contract was valid
under the proviso of 8(e). John F. LeBus v. International Union of Operating
Engineers etc., Local Union 406 (D.C. E. La) 188 F. Supp. 392.
Here, no violation of (B) is alleged, presumably because the picketing to compel
Binnings to subcontract work it was doing itself was calculated not to force it to
"cease doing business" with another, but to start doing so. (The condemned object
in (B) does not embrace "refrain from doing business ") Had the agreement
imputed to Local 60 required Binnings to forgo an existing relationship with a
subcontractor, we would then have had the additional and independent question
of the kind presented in the Stevens & Colson case (supra footnotes 4 and 5) namely,
whether the fact that the agreement sought was legal under the proviso to 8(e)
served to create a special exemption from the express prohibition in (B). It happens
that the Trial Examiner and the district court had different views on that precise
issue. The Trial Examiner in Colson & Stevens, as did Judge Wright by way of
dictum in our case (supra, footnote 2), thought the proviso had the effect of render-
ing the conduct immune under (B) as well as (A). On the other hand, District
Judge Kilkenny in the Colson & Stevens case thought otherwise, so at the same time
that he denied a 10(1) injunction as to (A), he granted one as to (B).
But all of those cases, like the Sand Door case mentioned in the conference reports,
proceeded upon the premise of the validity of the hot-cargo agreement and con-
sidered the question of whether such validity was the basis for an exception to a
prohibition otherwise clearly expressed, as in present (B) or its equivalent in old
(A). While differing as to whether legality under 8(e) served to create an exemp-
' Construction, Production it Maintenance Laborers Local 383 (Colson and Stevens
Construction Co, Inc ), 137 NLRB 1050
5 Ralph F Kennedy v Construction . Production d Maintenance Laborers' Union, Local'
383, AFL-CIO ( Colson it Stevens Construction Co ), 199 F. Supp• 775 (D.C. Ariz ).
E No 1147 , p. 39: I Legislative History of Labor-Management Reporting and Disclosure -
Act (Government Printing Office, 1959) (hereafter cited as "LH") pp 943-944
7105 Cong . Rec. 16415 , September 3, 1959 ; II LII 1433
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lion under (B), it led them unanimously to the conclusion that it provided exonera-
tion under (A). Here the General Counsel is using the reverse procedure: instead
of adopting the premise that the 8(e) proviso means what it says he reads into it
an unspoken condition giving it the reverse meaning and uses that as the indispen-
sable basis foi declaring that (A) proscribes what but for such premise it clearly
permits Therein lies the fallacy in the prosecution's approach, embodied in the
following proposition in the brief:
The proviso does not purport to exempt the construction industry unions from
any other provision of the Act. Strike action either to secure such an agreement
or to enforce observance of one previously made continues to be unlawful.
Each sentence begs the question: it does not say in connection with what "other
provision of the Act" the issue of an exemption based on the 8(e) proviso arises
and under what provision such strike action "continues to be unlawful." As previ-
ously pointed out, there was no provision comparable to (A) before the 1959 amend-
ments, so the word "continues" has no pertinency in a context of (A). Besides,
the 8(e) proviso, as it reads, is not an "exemption" from (A) it is the inescapable
basis of exoneration thereunder. While (B) is not here involved, it may be noted
that the term "continues to be unlawful" as applied to the object therein described
assumes, inaccurately, that before the 1959 amendments, the law was settled in
regard to 8(b)(4) conduct for the purpose of obtaining a hot-cargo agreement In
fact, as Judge Wright pointed out in his opinion in this case (supra, footnote 2),
the Sand Door doctrine was concerned only with prohibited secondary activity to
"enforce" such an agreement. While his view that "striking to obtain a subcontractor
agreement was not illegal when the Taft-Hartley Act was amended" must be qualified
by the observation that that issue was as open then as it is now, the point is that
involved in such a question is whether the legality of the contract serves to exempt
from the express prohibitions of (B) strike action having the object of obtaining
one So the proposition of the General Counsel, above quoted, whatever may
be said for the accuracy of its content, is only pertinent to a situation where a union
has resorted to the pressures recited in the body of 8(b) (4) (i) and (ii) with an
object of compelling an employer to "cease" an existing business relationship, within
the express prohibition of (B), and the defense claims a special exemption because
its purpose was to obtain an agreement legal under the proviso of Section 8(e). We
do not reach such a question, since no violation of any secondary boycott prohibi-
tion under (B) is charged We have only the question of whether (A) and the
proviso of 8(e) mean what they say. In agreement with every prior determination
thus far on this matter, I hold that they do
Upon the record and all of the foregoing, I hereby make the following:
CONCLUSION OF LAW
The agreement alleged to have been sought by Local 60 from the Charging Party,
through the conduct therein described, is not prohibited by Section 8(e). Hence
Local 60 did not have as an object "forcing or requiring any employer . . . to enter
into any agreement which is prohibited by Section 8(e), within the meaning of
Section 8(b) (4) (i) and (ii) (A) of the Act.
RECOMMENDATION
Upon the foregoing conclusion and upon the entire record, it is hereby recom-
mended that the complaint be dismissed.
Kit Manufacturing Company, Inc. and Sheet Metal Workers
International Association, Local 213, AFL-CIO. Case No.
19-CA-1406. September 18, 1961
DECISION AND ORDER
On July 30, 1962, Trial Examiner David Karasick issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
138 NLRB No. 123.