540
Building Trade Unions: Attitudes Toward Prefabrication
544.2.7
"Boycotts of prefabricated building parts are commonly provided for
in collective bargaining agreements in the construction industry as
a mean of work preservation, and they are not unlawful. But are
they statutorily protected also in situations where the reassembled
parts are specifically required by the job contract? A Federal court
of appeals has said they are.
544.2.8
"A contractor, whose agreement with a plumbers' union provided
that installation of all pipe two inches and under would be done by
employees on the job site, won a bid for a construction job
specifying that certain heating and cooling equipment be
preassembled in the factory. Such equipment involved the use of
pipes described in the union agreement.
544.2.9
"The union ordered the workers not to handle the equipment, and
the work did not progress. The contractor claimed that the
provisions of his job contract placed the situation beyond his control
and that the union was actually in dispute with the party a hospital
for which the job was being done, since that party alone could
change the specifications.
544.10
"In adjudicating the case, the NLRB upheld the contractor by
applying its `right to control' (more precisely, power to control) test
for determining of secondary boycott activities." (18)
544.2.11
However, this was not how the court of appeals viewed the
situation. In short and simple language, the court in effect said that
the contractor had no business signing a job contract which called
for prefabricated parts when he knew that his union contract barred
the use of such parts.
544.2.12
The court expressed dissatisfaction with the NLRB's "right to
control" test and said, "We believe that (the) test must be
abandoned", citing similar conclusions of commentators and all the
other Federal appellate courts. (19)
544.2.13
A later court decision on another hospital project had a similar
result: "The U.S. Court of Appeals for the District of Columbia has,
for the second time, told the National Labor Relations Board
(NLRB) to abandon the right-of-control test it uses in determining
whether union refusal to handle prefabricated products is legitimate
work preservation or illegal secondary boycott activity.
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