The true secondary boycott is indefensible and must not be permitted. The act must not, however, prohibit legitimate concerted activities against other than innocent parties. I recommend that the act be clarified by making it explicit that concerted action against *** an employer on a construction project who, together with other employers, is engaged in work on the site of the project, will not be treated as a secondary boycott.

President Eisenhower took the same view, in his message of January 23, 1958, when he urged the Congress to remove certain ambiguities and inequities in the Taft-Hartley Act, including the amendment of:

The secondary boycott provisions to make it clear that they do not prevent * * *

Activity against secondary employers engaged in work on a construction project with the primary employer.

The 1954 Report of the Senate Committee on Labor and Public Welfare assessed the merits of the issue in the same manner as this committee did in 1959. The majority view of the Senate Labor Committee, when Senator Smith of New Jersey was chairman, are set forth in Senate Report No. 1211, 83d Congress, 2d session, April 15, 1954, as follows:

The provisions of section 8(b) (4), (A), (B), and (C), of the National Labor Relations Act which prohibit secondary boycotts are designed to protect innocent third parties from being injured in labor disputes with which they are not concerned and for the existence of which they bear no responsibility. As the President pointed out, the true secondary boycott which afflicts economic injury on employers who are genuine neutrals in the dispute between some other employer and his employees, is indefensible. But there are situations in which the secondary employer against whom the disputing union exerts its economic strength is not a genuine neutral with respect to the dispute between such union and the primary employer, where the secondary employer is in fact, either a conscious ally of the primary employer involved in the dispute, or so closely involved in a joint or common venture with the primary employer that both may be regarded, for all practical purposes, as partners in a single enterprise. The President, therefore, recommended that such nonneutral secondary employers be denied the protection of the ban on secondary boycotts.

Thus, where two or more employers are engaged in operations on the site of a single construction project, each performing some phase of the work necessary for the completion of the project, be it a building, a bridge, a tunnel, or some other structure, it cannot be justifiably maintained that they stand in a strictly neutral relationship to each other. Rather, despite their existence as legally independent entities, they must be regarded realistically as partners in a single joint or common enterprise in which the individual interests of each are necessarily dependent on the success of the undertaking as a whole. In such a situation, the committee believes that a labor dispute originating between one of these employers and his employees in fact constitutes a dispute with all of the employers just as if all were copartners in the legal sense in a single business enterprise. It therefore approved an amendment permitting the union representing the employees of the employer primarily engaged in the dispute to extend its economic pressure to any or all of the other employers working on the same project at the common site without thereby violating the provisions of the act's ban on secondary boycotts, provided that the union involved in the primary dispute was not otherwise acting unlawfully or in violation of the terms of an existing valid collective bargaining agreement. The effect of this amendment would be to overrule the holding of the U.S. Supreme Court in NLRB v. Denver Building and Construction Trades Council et al. (341 U.S. 675, 71 Sup. Ct. 943, June 1951).

The minority of that committee stated its agreement with this proposition. Subsequently, the House Labor Committee issued a committee print to the same effect.

It is respectfully submitted, on the basis of all the considerations which have been previously stated, that this proposal has been fully considered over a long period of time by the Congress and that on the current record of support the legislation should be enacted.

We also respectfully request the opportunity to present an additional statement to this committee after the close of the hearings with respect to any additional issues which may have developed during the course of these hearings.

Mr. PERKINS. I want to say that you will be afforded that opportunity, Mr. Gray. If you want to make an additional statement, you may do so.

Mr. GRAY. That concludes my statement before this committee, sir. Mr. PERKINS. I want to compliment you on that splendid document. I feel it will save the committee much work. You have documented a lot of the background which was necessary for this committee to have to thoroughly understand and explain the problem to the Members of the Congress, Mr. Gray.

Now, I want to amend the statement that I made. Representative Ayres of Ohio was also one of the conferees, and he was present when this problem was discussed. This problem has been discussed so often by the members of the committee that I feel we all understand it and particularly Mr. Wier and Mr. Kerns and Mr. Ayres have called it to our attention on numerous occasions in the past. We are certainly glad to have you here this morning with us, Mr. Gray. I particularly felt that the part of your testimony that pointed out that, at the common construction site, members of the carpenters union could not cross the picket line under the present law, whereas if these same unions were at a factory site and the electricians were on strike, the carpenters union could recognize that strike.

This points up the discrepancy. You take this as a discrimination against the picketing at a common site.

Mr. GRAY. I certainly do, and there are many reasons for taking this position.

Mr. PERKINS. With your experience, would you go into detail there? Mr. GRAY. I think so, sir, because, let us take this building. If there is difficulty on the excavation of this building with, say, the excavating contractor, then it certainly delays the employment opportunities of the painting contractor that would perform with his employees in doing the last operation. Any common situs job is so interwoven that it is absolutely impossible to say that any contractor or any group of employees are independent of the other, as long as the activity of peaceful picketing is confined to the construction job site and in no way remote from it.

Mr. PERKINS. Mr. Wier, do you have any questions?

Mr. WIER. On that point, let me ask you first, Mr. Gray, have you counsel with you?

Mr. GRAY. Yes. This is Mr. Sherman, general counsel of the building construction trades department, and this is my son, C. R. Gray. He is chairman of our legislative committee.

Mr. WIER. I was just presented with an experience that I participated in that runs contrary to the Denver decision. This is a case of craft unions against industrial unions.

Now I might be the business agent of a union made up of 600 workers in a manufacturing plant. In the transportation industry and in the mining industry or any other of those types of industry, they have their own mechanics and they belong to the so-called broad union, or overall union. There are maintenance men and carpenters, electricians, plumbers, and carpenters and all employed and covered by my contract.

Now, I have no quarrel with the employer over my production workers, but my employer sees fit to let a general contract to a contractor and he in turn subcontracts the carpentering and the painting, and the sheetmetal work and the plumbing, and so on. I then find out that the carpenters are union and after the carpenters come in the electricians and the sheetmetal workers and in these groups of subcontractors I find a nonunion firm. So because I cannot straighten it out with my employer and in behalf of my own maintenance members, I call a meeting of the employers and tell them, "Here is the beginning of difficulty."

I am successful in getting a strike vote then against my employer. Now, there is nothing in the world in the Denver case that prohibits my union from picketing every one of those contractors, is there? Mr. KEARNS. You cannot do it.

Mr. WIER. I put a picket line on the place, is that right? You have had plenty of experience in that, and I would rather ask the counsel if you think that I would be in jeopardy.

Mr. SHERMAN. If I understand your point, Mr. Congressman, certainly an industrial union representing the employees in a mine or representing employees in a factory, no matter how large it might be and no matter how many departments there might be, would have the right to picket assuming it was not otherwise unlawful with respect to that entire enterprise.

In the situation that we are talking about, the problem arises because of the fact that you have a number of employers on a job. Now, for example, in the case that you have put, if I understand it, in an industrial enterprise, even if the craft unions had had separate contracts with the single employer, if one of the craft unions would have a dispute with respect to the particular department, the other craft unions, provided they were not in violation of their contract, could walk out because there was only one employer. But the issue here arises because in the building trades typically in the carrying forward of a job, you have a number of employers. Then what has happened here is that a disadvantageous result has come about because it is claimed that although the union has simply a dispute with respect to the job, the effect of the dispute or the work stoppage is to get one employer to cease doing business with another. All of these statements that we have had from the President of the United States, from this honorable committee, from the Senate committee and the like, have been to the effect that we have to be sensible and realistic, that the job is a single enterprise and the fact that happily in this industry there is a place for small businessmen does not mean that the union should be deprived of the right to picket.

Mr. WIER. I gather from that that you are following my presentation of a labor dispute. I am certainly pointing out to you that my employer recognizes our right not to work with nonunion people but

this nonunion sheetmetal worker comes to the job with a nonunion crew. I am one of those militant fellows that says "I am not going to work with any nonunion firm on this property." I tell the employer that. I get the consent of the union to tie the job up.

The building trades can put the pickets to the place and we join in picketing. The Denver situation I do not think could be carried out in that particular kind of a strike.

Mr. SHERMAN. Well, the Denver case has a lot of peculiar results, Mr. Congressman. One of those results is that the realities of the situation are kind of ignored if the case comes up in litigation. So if you can draw the intent of getting one employer to stop doing business with another, the Denver case may be applied. I am sure that there are situations where the Denver case perhaps may not be applied because nobody is raising the question. But the harsh consequences of the doctrine are about along the lines that I have indicated. Mr. WIER. Wouldn't I be within my rights, representing the collective bargaining unit in there, including construction workers or maintenance men, as they are called in plants, in serving notice on the employer that if this subcontractor of the sheetmetal workers is coming in here to work, he is going to have difficulty?

Mr. SHERMAN. I take it that you are referring to a case where the union represents the maintenance men in the industrial establishment and it also represents the production people. Now, along comes some kind of a job in the plant and the employer decides he is going to use a nonunion sheet metal contractor. We are talking about a contractor now as distinguished from an employee, if I understand your position.

Mr. WIER. That is right.

Mr. SHERMAN. I suppose that the industrial union might tell the employer that there would be difficulty and I suppose there could be difficulty which would have no legal consequence because the question would not be raised. But if the question were raised it seems to me the way the Denver Building Trades result works itself out that they might very well claim that there was a clear secondary boycott in that situation.

You understand, Mr. Congressman, I am not saying that I think that is a good result. I am talking about the legal results of the facts that you have described.

Mr. WIER. That is what I am trying to find out.

Now, who would be putting the pressure or who would be putting the boycott on? Would that be me or my production workers, or my union?

Mr. SHERMAN. I think the legal theory would work itself out like this, Mr. Congressman: I think the theory would be that the stoppage in the case you have described, that is, of the maintenance men, let us say, in the industrial plant-the stoppage was intended to compel the industrial employer, that is, the single owner of the factory, to cease doing business with Mr. Smith, or whatever his name might be, who is the nonunion sheet metal contractor.

Mr. WIER. That is right.

Mr. SHERMAN. I think that that is what the legal consequence would be.

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Mr. WIER. You have not answered my question. Would I be subject to the disposition of the Denver decision for advising my employer under contract with the union that if he hired this contractor who is nonunion, I would probably have to pull the people out?

Mr. SHERMAN. I don't believe if you merely said that, Mr. Congressman, even under the new drastic restrictions in the current law, that the consequence would be the holding that the mere saying of it would be a legal violation. I think if you did it or in the alternative if you threatened the employer or coerced him, then there would be a case of violation.

Mr. GRAY. I am not a lawyer, but wouldn't the answer to your question depend a whole lot on what were the terms of the contract between the industrial union and that employer? Wouldn't that be a big factor?

Mr. WIER. I am assuming that I have a contract that protects my people from having to work with nonunion people. There I might run into trouble with the new law.

Mr. SHERMAN. If I may say so, Mr. Congressman, in the case you put, it is not really a question of the relation between the employees. It is a question of the relation between the employers. In other words, if the employer, for example, in the case you put was going to add to his maintenance force by adding a number of people in the sheet metal division and those employees were, shall we say, nonunion employees, I don't think any legal question would be presented. The legal issue is presented because of the fact that the industrial employer, the factory owner, has decided to bring within his plantthis is not a construction case-a contractor or employer. Then the question of the effect of the language arises and the language is awfully broad. It talks in terms of not engaging in labor conduct which has as an object requiring one employer to cease doing business with another. So we have the words "one employer," and that is your factory owner, and then we have the words "another employer," and that is the sheetmetal contractor, you see.

Mr. WIER. At any rate, I did that at one time, and didn't involve myself in trouble, but that was long before the Denver decision.

Mr. SHERMAN. Mr. Congressman, in actuality, in many of these situations people live as they live in so many other circumstances, the way they think they should without running to the law books whenever a difficulty arises. But I am sure that cases of that sort do arise, where the problem is worked out peacefully and there is no need to invoke laws or anything of that sort. It may have been that that is what happened in your case.

Mr. WIER. In this case the employer did not want any labor difficulty, and I might say the subcontractor did not get the contract. Thank you very much.

Mr. KEARNS. Mr. Chairman, I am sorry, Mr. Gray, that I missed a lot of your statement. I had to get a subcommittee on education ready to go to Jersey City Thursday and Friday. Sunday I met with all of the officers of the Building Trades in my congressional district and with 10 inches of snow they were all there, and we had a wonderful meeting. If you don't know them, I think that your son knows Joe Valoditch there, the head of the Building Trades.