William J. Brennan, Jr.

“ An employer's decision as to the products he wishes to buy presents entirely different issues. That decision has traditionally been regarded as one within management's discretion, and Fibreboard does not indicate that it is a mandatory subject of collective bargaining, much less a permissible basis for a product boycott made illegal by federal labor law. ”

“ Senators Goldwater and Dirksen filed a minority report urging that a prohibition against 'hot cargo' clauses should be enacted to close that loophole. Their statement expressly acknowledged their acceptance of the reading of § 8 (b) (4) (A) as applicable only 'to protest genuinely neutral employers and their employees, not themselves involved in a labor dispute, against economic coercion designed to give a labor union victory in a dispute with some other employer.' [25] They argued that a prohibition against 'hot cargo' clauses was necessary to further that objective. ”

“ The understanding of Congress with regard to that issue might have been best reflected in a statement on the House floor by Rep. Holland: 'When the labor reform bill is out of the way-labor and management could, as they eventually must, sit down together and work toward a solution of our most serious problem-automation which has already affected the employment picture through more productivity and less employment. ”

“ The determination whether the 'will not handle' sentence of Rule 17 and its enforcement violated § 8 (e) and § 8 (b) (4) (B) cannot be made without an inquiry into whether, under all the surrounding circumstances, [38] the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, Frouge, the boycotting employer, would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary. ”

“ First, this motivation for the proviso sheds light on the central theme of the body of § 8 (e) , to which the proviso is an exception. Second, if the body of that provision and § 8 (b) (4) (B) were construed to prohibit primary agreements and their maintenance, such as those concerning work preservation, the proviso would have the highly unlikely effect, unjustified in any of the statute's history, of permitting garment workers, but garment workers only, to preserve their jobs against subcontracting or prefabrication by such agreements and by strikes and boycotts to enforce them. ”

“ Especially at a time when Congress is continuing to explore methods for meeting the economic problems increasingly arising in this technological are from scientific advances, this Court should not take such a step until Congress has made unmistakable clear that it wishes wholly to exclude collective bargaining as one avenue of approach to solutions in this elusive aspect of our economy. ”

“ That principle has particular application in the construction of labor legislation which is 'to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests.' Local 1976, United Brotherhood of Carpenters, etc. ”

“ Similarly, the construction industry proviso, which permits 'hot cargo' agreements only for jobsite work, would have the curious and unsupported result of allowing the construction worker to make agreements preserving his traditional tasks against jobsite prefabrication and subcontracting, but not against nonjobsite prefabrication and subcontracting. ”

“ The Court concludes that the Union's conduct in these cases falls outside the ambit of § 8 (b) (4) because it had an ultimate purpose that the Court characterizes as 'primary' in nature-the preservation of work for union members. But § 8 (b) (4) is not limited to boycotts that have as their only purpose the forcing of any person to cease using the products of another; it is sufficient if that result is 'an object' of the boycott. Legitimate union objectives may not be accomplished through means proscribed by the statute. See National Labor Relations Board v. ”

“ We further noted, supra, at 211-212, 85 S.Ct. at 403:
'Industrial experience is not only reflective of the interests of labor and management in the subject matter but is also indicative of the amenability of such subjects to the collective bargaining process.
Experience illustrates that contracting out in one form or another has been brought, widely and successfully, within the collective bargaining framework. Provisions relating to contracting out exist in numerous collective bargaining agreements, and ' (c) ontracting out work is the basis of many grievances ”

“ Allen Bradley was a private antitrust action brought against the electrical workers union in New York City. Union members were employed by contractors to install electrical equipment in buildings. Other union members were employed by New York City manufacturers of electrical equipment. As part of a conspiracy between the manufacturers, the contractors and the union, union members refused to install any electrical equipment manufactured outside the city. The Union's interest in this scheme is plainly set forth in the Court's opinion ”

“ Union of Electrical, etc., Workers AFL-CIO v. National Labor Relations Board, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592.
Strongly held opposing views have invariably marked controversy over labor's use of the boycott to further its aims by involving an employer in disputes not his own. But congressional action to deal with such conduct has stopped short of proscribing identical activity having the object of pressuring the employer for agreements regulating relations between him and his own employees. ”

“ Hearings before the Subcommittee on Unemployment and the Impact of Automation of the House Committee on Education and Labor, 87th Cong., 1st Sess. (1961) , on H.R. 7373, a 'Bill Relating to the Occupational Training, Development, and Use of the Manpower Resources of the Nation.' See statement in these latter hearings of then Secretary of Labor, Arthur Goldberg, at 3: 'Many achievements in attempting to overcome the difficulties created by radical technical change can and should be accomplished through collective bargaining and joint labor-management efforts. ”

“ Their statements in support consistently defined the evil to be prevented in terms of agreements which obligated neutral employers not to do business with other employers involved in labor disputes with the union. [26] Senator Gore initially proposed, and the Senate first passed, a 'hot cargo' amendment to the Kennedy-Ervin bill which outlawed such agreements only for 'common carriers subject to Part II of the Interstate Commerce Act.' This reflected the testimony at the Select Committee hearings which attributed abuses of such clauses primarily to the Teamsters Union. ”

“ Hearings in late 1958 before the Senate Select Committee explored seven cases of 'hot cargo' clauses in Teamsters Union contracts, the use of which the Committee found conscripted neutral employers in Teamsters organization campaigns. [24]
This loophole-closing measure likewise did not expand the type of conduct which § 8 (b) (4) (A) condemned. ”

“ A sentence in a provision of that agreement entitled Rule 17 provides that '* * * No member of this District Council will handle * * * any doors * * * which have been fitted prior to being furnished on the job. * * *' [2] Frouge's Philadelphia project called for 3,600 doors. Customarily, before the doors could be hung on such projects, 'blank' or 'blind' doors would be mortised for the knob, routed for the hinges, and beveled to make them fit between jambs. These are tasks traditionally performed in the Philadelphia area by the carpenters employed on the jobsite. ”

“ The Reach of N.L.R.A. §§ 8 (b) (4) and 8 (e) , 113 U.Pa.L.Rev. 1000, 1017-1018 (1965) .↑ See 93 Cong.Rec. 4132 (Senator Ellender) , II 1947 Leg.Hist. 1056: 'A secondary boycott, as all of us know, is a concerted attempt on the part of a strong union to compel employers to deal with them, even though the employees of that employer desire to be represented by other unions, or not to be represented at all. * * * (An) example is the New York Electrical Workers Union, the IBEW.' See also Statement of Senator Ball, 93 Cong.Rec. ”

“ United States, 284 U.S. 582, 52 S.Ct. 38, 76 L.Ed. 504, which summarily affirmed 44 F.2d 58, also involved secondary activity within the rubric of Duplex; the union, whose members' primary employers were painting contractors, sought to 'compel manufacturers to bring their products into the state unfinished * * *.' 44 F.2d, at 59. (Emphasis supplied.) ↑ See Laidler, op. cit. supra, n. 6, at 64; Clark, The Law of the Employment of Labor 289-290 (1911) ; Oakes, Organized Labor and Industrial Conflicts § 408 (1927) ”

“ See Comment, 62 Mich.L.Rev. 1176, 1185 et seq. (1964) .↑ See Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA §§ 8 (b) (4) and 8 (e) , 113 U.Pa.L.Rev. 1000, 1018, 1040 (1965) .↑ See Orange Belt District Council of Painters, No. 48, AFL CIO v. ”