Masonry Magazine October 1965 Page. 25
Hot Cargo
But Congress made the exception which states that nothing in Section 8 (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.
The National Labor Relations Board in cases brought before it arrived at the conclusion, based on its interpretation of the law prior to and after the amendment, that it was an unfair labor practice for a union to engage in strike action to force an employer to sign a "Hot-Cargo" agreement relating to work at a construction site. The Board maintained this position as late as 1962 in Colson and Stevens Construction Co., Inc. 137 NLRB 1650. In this case, the union by picketing and oral demands, sought to force Colson to sign an agreement that contained a "Hot-Cargo" clause. The Board said that the legislative history of the 1959 amendments clearly indicated that Congress did not intend to change existing law and the union's conduct was held to be unlawful.
The case reached the United States Court of Appeals for the Ninth Circuit which reversed the Board's holding. The Court reasoned that picketing to secure an agreement to cease business with certain persons is not made unlawful under Section 8 (b) (4) (A) when the agreement sought is within the construction industry exemption provision of 8 (e).
The Court of Appeals for the District of Columbia was presented with the same question in the 1964 case of Orange Belt District Council of Painters v. NLRB 28 F 2d 534 and refused to enforce the Board's order. Despite the ruling of the Courts, the Board continued to maintain its position.
In April 1964, the Court of Appeals for the Third Circuit held that the Board's theory was based on an erroneous premise. The Court stated that: "Section 8 (b) (4) (A) as amended, declares it an unfair labor practice for a union to engage in any activity therein proscribed where an object is to force or require an employer to enter into an agreement prohibited as 'unenforceable and void by subsection (e). However, since the effect of the provision was to preclude the application of subsection (e) to labor-management agreements relating to subcontractors for work to be performed at the construction site, coercive activity, otherwise illegal, may be employed to obtain such a contract."
In view of the rejection of its rationale, the Board reversed its prior holdings in September 1964 in the case of Centliure Village Apartments 148 NLRB 93.
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MASONRY
October, 1965
25