540
Building Trade Unions: Attitudes Toward Prefabrication
certain persons, although a union could not lawfully attempt to
enforce such an agreement by strike action. Now, Section 8(e),
added to the NLRA by the 1959 amendments, forbids the mere
execution of such `hot cargo' agreements and makes it an unfair
labor practice for an employer and a union to enter into such an
agreement." (16)
544.2.3
However: "A proviso to Section (e) exempts from that section's
provisions agreements between unions and employers 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 exemption
does not extend to `hot cargo' agreements concerning supplies or
other products or materials produced or manufactured elsewhere
and delivered to construction sites.
544.2.4
"Reversing an earlier policy, the NLRB now holds that picketing or
other coercion to obtain a hot cargo pact in the construction
industry is lawful. Some Federal courts support this policy, but
most courts disagree. Also reconsidering an earlier decision, the
Board holds that picketing to "reaffirm" a hot cargo contract
prohibiting subcontracting to nonunion firms is lawful; however,
picketing to enforce the contract against specific nonunion firms
would be unlawful, the Board said. A Federal appeals court ruled
that a subcontracting clause is primary, and lawful, if it affects the
labor relations of a general contractor and protects his employees
only; if it aims to regulate working conditions of a subcontractor's
employees or sanctions a boycott against a subcontractor, then the
construction industry's hot cargo exemption would not permit
enforcement of the clause through picketing." (17)
544.2.5
This would seem to suggest that unions could legally force
contractors to deal only with union-approved subcontractors for all
work on the building site itself, but could not boycott products
manufactured elsewhere. The way such a law works in practice,
however, can be seen in the following reviews of two recent court
decisions. Both of these cases revolve around the NLRB's right-of-
control test.
544.2.6
Under this test, if the owner, architect or engineer specifies the
product, then the contractor has no control over its use. In the
absence of such control, union refusal to handle the product cannot
be a primary dispute between the union and the contractor over
preservation of on-site jobs and must, instead, be an illegal product
or secondary boycott.
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