Pacific Northwest Chapter of Associated Builders & Contractors, Inc. v. National Labor Relations Board

These cases raise important questions concerning the scope of § 8(e) of the National Labor Relations Act, 29 U.S.C. § 158 (e), which prohibits “hot cargo” agreements. The primary issue is whether the construction industry proviso to § 8(e) renders lawful clauses in collective bargaining contracts forbidding the employers to subcontract work at any construction site to a firm not having a contract with the signatory union. Additional issues are whether unions may picket or strike to induce an employer to enter these agreements and whether the agreements, once entered, may be enforced by picketing or strikes. We conclude that the subcontracting clauses fall within the construction industry proviso and consequently do not violate § 8(e). We also conclude that unions may picket or strike to obtain such agreements, but not to enforce them. The orders of the National Labor Relations Board are accordingly enforced.

I.

Facts.

Two orders of the Board are under review here pursuant to 29 U.S.C. § 160 (e) and (f). The first concerns a collective bargaining agreement between Oregon-Columbia Chapter of the Associated General Contractors of America, Inc. (AGC) and Local 701 of the…

(with whom

As with many legal issues, where one ends up in this case depends upon where one starts. While I have no disagreement with the court’s holding that union signatory clauses are secondary and within the scope of section 8(e), I respectfully dissent from its holding that such clauses are invariably within the construction industry pro *1325 viso to section 8(e) when a collective bargaining relationship exists between the employer and the union seeking the clause. The majority reaches its conclusion by commencing with the view that the construction industry presents unique problems in labor relations that require the legitimation of union signatory clauses. Although admitting that the legislative history is not compelling, the court finds that legitimation was provided by the construction industry proviso. My starting point, on the other hand, is with Connell Construction Co. v. Plumbers & Steamfitters Local 100, 421 U.S. 616 , 95 S.Ct. 1830 , 44 L.Ed.2d 418 (1975), and its concern with the “top-down” organizing effect of union signatory clauses. This concern led the panel before which this case was heard originally to hold as follows:

I would adhere to that holding and…

with whom

I join Judge Sneed’s dissent in all respects and add some comments regarding the scope of the construction industry proviso.

The collective bargaining agreements here prohibit signatory general contractors from subcontracting any work covered by the agreement at any construction site to nonsignatory contractors. These agreements violate subsection 8(e) of the National Labor Relations Act, 29 U.S.C. § 158 (e) (1976), unless they are permitted under the construction industry proviso, which allows “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 . . .. ” Id. The precise issue here is whether that proviso legalizes agreements that limit subcontracting at sites where the employer has no employees represented by the union. The majority holds that it does. I disagree.

In Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616 , 95 S.Ct. 1830 , 44 L.Ed.2d 418 (1975), the Supreme Court concluded that the construction industry proviso did not authorize a construction industry employer and a union not representing its employees to agree to…