National Woodwork Manufacturers Association v. National Labor Relations Board

PETITIONER:National Woodwork Manufacturers Association
RESPONDENT:National Labor Relations Board
LOCATION:Canada Packers LTD. Headquarters

DOCKET NO.: 110
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 386 US 612 (1967)
ARGUED: Jan 18, 1967 / Jan 19, 1967
DECIDED: Apr 17, 1967

Facts of the case

Question

  • Oral Argument – January 18, 1967
  • Audio Transcription for Oral Argument – January 18, 1967 in National Woodwork Manufacturers Association v. National Labor Relations Board

    Audio Transcription for Oral Argument – January 19, 1967 in National Woodwork Manufacturers Association v. National Labor Relations Board

    Dominick L. Manoli:

    May it please the Court.

    When the Court arose yesterday afternoon I was addressing myself for the contention of the other side that Section 8 (b) (4) (A) of the Taft-Hartley Amendments barred all so-called product boycotts.

    I suggest that the use of the slogan, product boycotts, does not help — really help us resolve our problem.

    When Congress enacted legislation against product boycotts it had in mind a specific evil —

    (Inaudible)

    Dominick L. Manoli:

    Product boycott.

    (Inaudible)

    Dominick L. Manoli:

    Product.

    Potter Stewart:

    Product?

    Dominick L. Manoli:

    Yes.

    Potter Stewart:

    Thank you.

    Dominick L. Manoli:

    When Congress Congress enacted legislation against product boycotts, it had a specific evil in mind namely employer refusals to handle the products of another employer who was involved in a labor dispute or who was nonunion or who was otherwise disfavored, otherwise disfavored by the union representing those particular employees.

    And that this was a device to exert to a neutral employer pressure, pressure upon the employer disfavored by the union.

    Now in determining whether or not refusals to handle products coming from another employer, whether that was refusals are a violation of the statutes or whether or not we must look in the light of the purpose of Congress, we must look to the objective of the employees or the union that’s directing them to refuse to handle the products coming from another employer.

    Now, let me explain my meaning with two illustrations.

    Supposed for example that you have my — employer A, employer A buys doors from manufacturer B.

    The employees of employer A are union.

    Those of employer B are nonunion.

    The employees of A refuse to install the doors coming from B because B’s doors do not bear the union label and B, his employees are nonunion.

    That was the situation under Sand Door Case which was before this Court several years ago.

    Now let me give a second illustration.

    Employer A under his contract with this collective bargaining agreement with his employees is required and has traditionally given them certain work to be done on doors, the finishing of unfinished doors.

    Now employer A decides that he is going to buy finished doors.

    And when these finished doors come to him, his employees refused to install those doors.

    The reason that they are refusing to install those doors is because the employer in violation of his agreement not to assign the finishing work to someone else, to preserve it for them as — deprive them of work which they have traditionally been performing and work which under their contract they’re entitled to.

    Now essentially, that is the case before this Court involving the employer of the contract to Frouge.

    That is not a secondary boycott situation.

    All that the two, the two examples which I’ve given can be loosely called as product boycotts.

    As product boycotts, there are differences between —

    (Inaudible)

    Dominick L. Manoli:

    I’m sorry I’m having trouble with that word, product boycotts —

    Product?

    Dominick L. Manoli:

    Yes.

    Either they might giving it — catching it or something wrong with my voice.

    I’m speaking of the product boycotts.

    As I said, the two illustrations which I’ve given to the Court, they are enti — although in the sense they can be said to involve product boycotts.

    Product boycotts, they are analytically different because the object of the employees who are refusing to handle the products are entirely different.

    And the difference in their object makes for wholly different results under the statute a result which should not be blurred by simply imposing upon them the label, product boycott.

    In the first case that I gave, in the first case I gave where the employees of the union re — union employer A refused to handle the doors coming from a nonunion source, there the employees have no dispute whether own employer over the terms or conditions of their employment.

    Their dispute is with the manufacturer B who is nonunion.

    And his doors do not bear a union label.

    When they refuse to perform services for employer A, their own employer, and install these doors, they are seeking to exert secondary pressure upon B, the disfavored employer.

    That was I said was a situation before this Court in the Sand Door Case in which the Court held that this was a violation of the secondary boycott provisions of the stat — of the statute.

    Now, in the second example which I gave, which should I say is essentially the case before this Court involving in.

    And in the Frouge incidence — in the Frouge incident, in the second case, the employees of employer A, they’re not concerned with the manufacture of the doors or the conditions under which those doors are manufactured.

    Their concern is solely with res — solely over the loss of their work which they have traditionally been performing for their employer which under their agreement, he’s agreed to give to them.

    Their dispute, the target of their action is their immediate employer over their own immediate work opportunities.

    That is not a secondary boycott at all.

    Abe Fortas:

    Well, supposed in the second case you put, it also turns out that B, the manufacturer of the doors is a nonunion employer.

    Dominick L. Manoli:

    If that is the reason why the employees of A are refusing to handle his doors then it would be a secondary boycott.

    Abe Fortas:

    Do you always have as the intent or the reason controlling is of mthe subject of test?

    Dominick L. Manoli:

    Well, the (Inaudible) yes, yes it is because —

    Abe Fortas:

    It’s a subject of test and you look to the dominant motive that maybe several motives, but you look to the dominant motive, is that your argument?

    Dominick L. Manoli:

    That’s right, that’s right.

    Now the statute says an object —

    Abe Fortas:

    Yes.

    Dominick L. Manoli:

    An object and you may have a mixed situation such as the one that Your Honor is suggesting, but in that case so, if one of the reasons why they are refusing to handle this product because the manufacturer of the door is nonunion, it is nonunion, then the board under those circumstances would find that there was a violation of the statute.

    Abe Fortas:

    And supposed the manufacturer of the door, his employees, that it just has a contract with the — a different union, another union, a un — and that’s objectionable —

    Dominick L. Manoli:

    Yes, right.

    Abe Fortas:

    — to the — that will make no difference whether — that you treat that just like your nonunion example.

    Dominick L. Manoli:

    Right, right.

    Hugo L. Black:

    Supposed you have done that (Inaudible)?

    Dominick L. Manoli:

    The — to which company, Your Honor?

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    The one that — who wants to buy that or the one that’s buying the doors?

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    Yes.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    Yes.

    Hugo L. Black:

    Supposed that (Inaudible)?

    Dominick L. Manoli:

    Well, Your Honor, again it doesn’t make any difference whether the embargo is a total one or a partial one.

    We must look what — to what the purpose of the refusal of the employees of employer A is when they refused to handle the doors.

    Where they hand —

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    (Inaudible)

    Hugo L. Black:

    When the consequence to it is (Inaudible)?

    Dominick L. Manoli:

    That maybe the consequence, Your Honor, but that’s not really the test.

    Hugo L. Black:

    Well, then what happens in (Inaudible)?

    Dominick L. Manoli:

    Yes, it does.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    That’s right.

    Hugo L. Black:

    Do you say that nevertheless (Inaudible)?

    Dominick L. Manoli:

    Right.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    Yes.

    Mr. Justice Stewart, yester — excuse me.

    Sir?

    Hugo L. Black:

    Isn’t that what (Inaudible)?

    Dominick L. Manoli:

    Well, it’s not difficult to do because frequently you will have the union A stating why it’s refusing to handle the particular products.

    They will frequently say to the employer, “We’re refusing to handle these products because B is nonunion.

    Dominick L. Manoli:

    He’s involved in the labor dispute or he’s got — or his doors or products bear the label of some rival or other union”.

    Abe Fortas:

    Well, your — in this argument, you’re departing from the board’s reason which was the control fact, is that —

    Dominick L. Manoli:

    Well — Your Honor, let me get to —

    Abe Fortas:

    Oh!

    Dominick L. Manoli:

    Let me see if I can explain that control.

    I think Mr. Justice Brennan now or yesterday got on the slightly different wedge of plans.

    Abe Fortas:

    I don’t want to interrupt your argument if you’ll —

    Dominick L. Manoli:

    Yes.

    Abe Fortas:

    — take care of it — want to take care of it later.

    Dominick L. Manoli:

    If?

    I will.

    Abe Fortas:

    Alright.

    Dominick L. Manoli:

    I will.

    Now, —

    William J. Brennan, Jr.:

    Oh, am I right if in this case, it was the next case, somewhere, where a refusal was to handle doors and even though the doors, the manufacturer of the doors was an organized shop and indeed the very union that was involved in this case?

    Dominick L. Manoli:

    In this particular case Your Honor —

    William J. Brennan, Jr.:

    Yes.

    Dominick L. Manoli:

    — the doors that — in the finished doors which the employees of the various contractor were refusing to install.

    Some of them bore no union, no label at all.

    Were they?

    Dominick L. Manoli:

    Others bore the label of this particular union and still others bore the label of some other union.

    William J. Brennan, Jr.:

    Then I gather you say that the — if they refuse to handle doors manufactured — the plant organized by the very same union that or in and of itself to establish that their dispute here is only with their own employer with — asking their own employer to perform his agreement with them that they should have the work and not the — how (Voice Overlap) —

    Dominick L. Manoli:

    Yes.

    That’s right.

    If the other — if the supplier of the doors, if his people are unionized, and that employers or the purchaser said, “That is our work.

    That is our work”.

    In our view that would be primary dispute.

    They’re not concerned with the conditions of employment.

    Byron R. White:

    So, I gather whether or not the employees of the manufacturer of the doors are organized and without regard if they are organized, what the union is, they belong to, do you say that the evidence then would be more favorable to the conclusion that they’re actually in this incidence, just insisting on the work for themselves because the contract —

    Dominick L. Manoli:

    Yes.

    Byron R. White:

    — was a contract to preserve the work for them, is that it?

    Dominick L. Manoli:

    That’s right.

    Hugo L. Black:

    Suppose they had a contract (Inaudible)?

    Dominick L. Manoli:

    Well, I think you have to see what the purpose —

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    Yes.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    If the purpose of the union is to preserve work, is to preserve work for the employees of the immediate employer involved there, then I would say it — that was protected activity.That was not — would not be a violation of the statute.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    Well, let me get to Allen Bradley now Your Honor because I’m just at that point.

    The other side of course has placed a great deal of reliance upon the legislative references in the 1947 debates on the Taft-Hartley Amendments — on the legislative references for the Allen Bradley case.

    To begin with, I think we should note that Congress as the conference report makes clear as the remarks of Senator Taft make clear viewed that case as involving a simple and a classic secondary boycott namely where the employees of one employer were refusing to install certain electrical equipment because it came from another employer where there was another union.

    Where there was another union which represented those employees.

    (Inaudible)

    Dominick L. Manoli:

    And because of that.

    That’s the way they say the Conference Report viewed that case and that’s the way Senator Taft view it.

    But now let’s look at the particular facts of the particular case and I believe we can distinguish it from the situation that we have here.

    In that case, the union which represented the employees of the New York City contractors, electrical contractors, it had no dispute, there was no dispute between them — between the union and the New York City contractors.

    But under an agreement between the contractors and the union, the union directed the employees of the contractors not to install electrical equipment to — which came from outside of the city of New York.

    Now the union’s purpose in doing this was to create a sheltered market for the New York City manufacturers.

    New York manufacturers —

    (Inaudible)

    Dominick L. Manoli:

    I — it was to create a sheltered market for the (Inaudible) for the New York City manufacturers and of course the union indirectly hope to obtain the advantage of an increasing —

    (Inaudible)

    Dominick L. Manoli:

    Or directly or indirectly as you will Your Honor.

    Is that what —

    Potter Stewart:

    The union’s interest was a — presumably was for its membership if the —

    Dominick L. Manoli:

    It —

    Potter Stewart:

    The union’s primary interest wasn’t the interest of the employers.

    Dominick L. Manoli:

    The —

    Potter Stewart:

    It was the same as here if it was — if want to make work for its employees.

    Dominick L. Manoli:

    But which employees?

    It was (Voice Overlap) —

    Potter Stewart:

    Only its members.

    Dominick L. Manoli:

    It was attempting to create more work for its members who were employed by the New York City manufacturers —

    Potter Stewart:

    Just as (Voice Overlap) —

    Dominick L. Manoli:

    But New York City —

    Potter Stewart:

    — Philadelphia — for the Philadelphia contractors.

    Dominick L. Manoli:

    Not, no it is not Your Honor.

    As New York manufacturers, it was not for the purpose of creating more work for the employees of the New York City contractors.

    Now, in our case, in — and because of that the union there refused to permit the New York City contractor’s employees who had no dispute to perform — to install certain equipment.

    And its objective was to obtain certain advantages somewhere else, In the New York City manufacturers, who employed its members.

    In our case, unlike that one here, the union is seeking to obtain it — protect the work opportunities of the employees who are immediately involved in this labor dispute and who are refusing to install the doors.

    Potter Stewart:

    And they keep all prefabricated doors out of the Philadelphia area, don’t they, they boycott them?

    Dominick L. Manoli:

    They have a collective bargaining contract.

    They have a collective bargaining contract —

    Potter Stewart:

    Oh, surely but there’s some —

    Dominick L. Manoli:

    — with all the employees there —

    Potter Stewart:

    There’s some collective bargaining (Voice Overlap) —

    Dominick L. Manoli:

    — and the fact that it’s (Voice Overlap) —

    Potter Stewart:

    — that would violate the law.

    Dominick L. Manoli:

    The fact that its employer or a collection of five with respect to each one of them, you have a work preservation object.

    Now, as they say, the fact that the result as you were say — asking me yesterday Mr. Justice, that the end result may be the — end result may be the same.

    I don’t think that that is the test.

    In one case, if the target maybe the other fellow, the supplier of the doors, that’s bad when he is the target.

    In the other case, where the target is the immediate employer, even — the effect that it may have upon this supplier of the door is an incidental, it’s a by-product if you will.

    It’s a by-product of the primary labor dispute over the preservation of work between the — between employer A and his employee.

    Potter Stewart:

    But whether or not he was the target and I — it seems to me, its hard to say he wasn’t, he was hit right in the bulls eye, (Inaudible) —

    Dominick L. Manoli:

    Of course —

    Potter Stewart:

    — because if he couldn’t sell any of his products in Philadelphia.

    Dominick L. Manoli:

    That is — you would take a case of a primary strike, primary picket.

    Secondary — neutral employers are hit when they come up to that line.

    They’re turned away.

    They’re dissuaded from going there and they’re hit and yet that effect as this Court has said is incidental to a legitimate primary activity.

    Potter Stewart:

    You’re talking about a common-situs, are you?

    Dominick L. Manoli:

    I’m talking about a primary, it’s a strike bound plan.

    And the neutral drivers, drivers who bring in supplies for that particular contract they come down, they’re turned away.

    Potter Stewart:

    That situs, yes.

    Dominick L. Manoli:

    They’re turned away and there may even be violence on the — at the primary picket line turning these people away.

    They’re being hit.

    And yet the Court has said that that’s merely incidental to a legitimate primary activities and its law.

    Hugo L. Black:

    (Inaudible)

    Abe Fortas:

    I’m interested —

    Hugo L. Black:

    (Inaudible)

    Abe Fortas:

    Your Honor, if their purpose — we have to look what the purpose of the union is.

    I am restating what I said before but I don’t know how else to restate it.

    If their purpose is to preserve work for the employees who are immediately involved in the labor dispute.

    It’s irrelevant whether or not interstate goods are being prevented from coming out — oh, goods are prevented from coming across state lines.

    It is still work present — a work preservation dispute and under the statute, this is legitimate primary activity.

    Now, that was the case in the —

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    Your Honor, let me give an example, we had the sound shingle case some years ago in the Ninth Circuit.

    There, the union represented the employers of an American manufacturer of shingles (Inaudible) American manufacturer of shingle, one who use shingles.

    That particular person was buying shingles from a Canadian manufacturer —

    (Inaudible)

    Dominick L. Manoli:

    From a Canadian manufacturer and the union did not want the American employer to buy shingles from the Canadian manufacturer.

    The reason they didn’t want to buy, the reason they didn’t want them (Inaudible) it is because Canadian manufacturer working standards were lower than those here and they — of the American manufacturer and the Canadian manufacturer was nonunion.

    Now, in that case, the union’s object, the target of the union’s action was the Canadian manufacturer because he was disfavored.

    He was disfavored because he was nonunion and its working conditions were not the same as those of the union within this country.

    In that case, the Ninth Circuit and the board that that was a violation of the statute.

    Dominick L. Manoli:

    But why was it a violation of the statute?

    It was a violation of the statute because the union had no dispute with the American manufacturer.

    Its dispute was directed to the Canadian, to the Canadian manufacturer.

    Now, if there had been no dispute with the Canadian manufacturer and the dispute had been solely with the American manufacturer over the preservation of work, the fact that that would’ve prevented Canadian goods from coming into this state would be irrelevant to the question of whether or not this was secondary or primary.

    William J. Brennan, Jr.:

    Is that —

    Preserving work?

    Dominick L. Manoli:

    The fact that it might result in that.

    That it might result in shutting out certain supplies from coming across state lines is irrelevant to the question of whether its primary or secondary activity under this statute.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    No Your Honor, there is no such finding here.

    The board never addressed itself to the problem whether it was to bar or not to bar interstate — out of state goods because it’s irrelevant I suggest.

    It’s irrelevant I suggest to the question of whether its primary or secondary.

    William J. Brennan, Jr.:

    Mr. Manoli, I suppose Congress might legislate against what you say was the purpose of the union here namely a refusal to handle out of state products even though the reason for the refusal to handle it was what you termed, work preservation, Congress could (Voice Overlap) —

    Dominick L. Manoli:

    Oh, of course.

    William J. Brennan, Jr.:

    — there should be no constitutional question if Congress (Voice Overlap) —

    Dominick L. Manoli:

    So far as I know of —

    William J. Brennan, Jr.:

    Then I take it the only real question before us is whether that’s what Congress did when it enacted 8 (b) (4) (B), isn’t it?

    Dominick L. Manoli:

    That’s right.

    William J. Brennan, Jr.:

    That’s our only question.

    Dominick L. Manoli:

    That’s your own — that’s correct.

    Abe Fortas:

    Mr. Manoli, may I ask you for the reference for me, something you said a moment ago, is the permissible purpose here confined to the particular employer or does it extend to employees of — all employees covered by the particular collective bargaining agreement.

    That is to say, let’s suppose you have a collective bargain — a single collective bargaining agreement that covers all of the contractors in Philadelphia.

    Dominick L. Manoli:

    Yes.

    Abe Fortas:

    And let’s suppose that the employees of contractor A say, “We won’t handle such and such a prefabricated product because if we handle that, it would injure other employees who are covered by the labor collective bargaining agreement”.

    Dominick L. Manoli:

    In those circumstances we would say Your Honor that the act or refusal, I’m sorry —

    Abe Fortas:

    (Inaudible)

    Dominick L. Manoli:

    In those circumstances we would say that the refusal of employer — of the employers of employee A to install those doors in order to protect the interest, the interest of people in some other unit, that this was secondary.

    Abe Fortas:

    Under the — although it’s the same collective bargaining agree —

    Dominick L. Manoli:

    Yes, that’s right.

    They can only do it to protect their own immediate work interest.

    William J. Brennan, Jr.:

    Mr. Manoli, I gather on its face, that we had nothing that the language of 8 (b) (4) (B), you’d have a (Inaudible).

    Dominick L. Manoli:

    I’ve admitted that Your Honor that literally (Voice Overlap) —

    William J. Brennan, Jr.:

    You have to go back to the legislative history (Voice Overlap) —

    Dominick L. Manoli:

    Indeed you do.

    William J. Brennan, Jr.:

    And limit its application as you suggested to those situations where its not work preservation but some other reason.

    Dominick L. Manoli:

    That’s right.

    William J. Brennan, Jr.:

    That they refuse to (Voice Overlap) —

    Dominick L. Manoli:

    Yes, yes.

    Reason having to do where the person — who the person who was supplying the goods and if I may just make a brief reference to the legislative history, of course the Court had all of this legislative history in the International Rice Milling case which we had here back in 1951.

    And this morning I picked up our brief in that and —

    William J. Brennan, Jr.:

    But may I ask you, was Allen Bradley dealt with at all in the legislative —

    Dominick L. Manoli:

    Allen Bradley?

    William J. Brennan, Jr.:

    Yes.

    Dominick L. Manoli:

    Yes, the Court — the Congress mentioned Allen Bradley —

    William J. Brennan, Jr.:

    So it —

    Dominick L. Manoli:

    — and as I —

    William J. Brennan, Jr.:

    And that was — that decision was before the Congress then when the —

    Dominick L. Manoli:

    Yes, it was.

    And as I have said — as I’ve said, number one, con — Senator Taft and the Conference Report viewed that as a simple classic secondary boycott of the employers belonging to union A refusing to handle the goods coming from another source where there was another union in the picture.

    And the — just let me read, I won’t take the time to read the whole quotation, but just let me read what Senator Taft said in connection with 8 (b) (4), of the original amendment.”

    This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who was wholly unconcerned in the disagreement between an employer and his employees”.

    Then it goes to say, “We’ve heard all kinds of talk that there are good secondary boycotts and bad secondary boycotts”.

    But the emphasis is repeatedly is on secondary boycotts.

    Then after he having said that, he says, “Take a case in which the employer is getting along perfectly with his employees.

    They agree on wages.

    Wages and working conditions are satisfactory on both sides.

    Someone else says to those employers, we want you to strike against your employer because he happens to be handling some product which we do not like.

    We do not think it is made under proper conditions”.

    Of course it goes on to say if that were encouraged, it wouldn’t create all kinds of problems.

    And finally concludes, “We condemn the view that if other workers do not like the way some employer is treating is treating his employees, they can promote strikes in any other plant which happens to be handling the product of the plant whose management that the workers do not like.

    Dominick L. Manoli:

    That’s the gloss of course that is imposed upon that literal language of Section 8 (b) (4).

    Potter Stewart:

    (Inaudible) but he does.

    He condemn that view but he doesn’t say that’s the only view he condemns.

    Dominick L. Manoli:

    Oh, Your Honor, the legislative history is replete.

    In fact Mr. Mahin acknowledges that that was the stock illustration

    Potter Stewart:

    Yes, was a stock illustration.

    Dominick L. Manoli:

    That was a (Voice Overlap) illustration he used (Voice Overlap) —

    Potter Stewart:

    It was an illustration.

    Dominick L. Manoli:

    — used by the proponents of that legislation and I suggest it was the only, it was an excuse — it was the only type to say, a boycott that they were trying to reach.

    Potter Stewart:

    Is this case — for almost exactly like the one decided by the Sixth Circuit when I was — the General Mill Worker case?

    Dominick L. Manoli:

    No Your Honor, I took special precautions to check on that case and I suggest that if you were to go back to reading your own opinion, I do suggest that you also read in connection with it the board’s decision because — where there’s one factor that is not clear on the face of the opinion which Your Honor wrote.

    That case, it was precisely the Sand Door case where the employees of employer A refused to handle doors or sojme material, equipment, product, whatever (Voice Overlap) —

    Potter Stewart:

    It was doors.

    Dominick L. Manoli:

    Doors.

    That were —

    Potter Stewart:

    As I remember it.

    Dominick L. Manoli:

    — coming from another source, from the manufacturer whose employees belong to some other union.

    And as I say that fact is noted clearly in the board’s decision.

    Potter Stewart:

    Right, but the basis was that they were prefabricated doors, wasn’t it?

    Dominick L. Manoli:

    They were prefabricated doors.

    Potter Stewart:

    And that was the reason —

    Dominick L. Manoli:

    But the —

    Potter Stewart:

    — wasn’t it?

    Dominick L. Manoli:

    No, no.

    The reason was not that.

    The reason that the union gave — the reason that the board found — which under — which caused the union to take the action it did is not because they were prefabricated but because they bore the label of some — because there were some — some other union people (Voice Overlap) —

    Potter Stewart:

    What are their collective bargaining agreements to — provided in that case?

    Dominick L. Manoli:

    Sir?

    Potter Stewart:

    What is the agreement provided in that case?

    Didn’t have — it didn’t say doors manufactured by some other union, did it?

    Dominick L. Manoli:

    I confess, I — I don’t (Voice Overlap) —

    Potter Stewart:

    I think it would.

    Dominick L. Manoli:

    (Inaudible)

    Potter Stewart:

    My recollection is that it’s a fairly — getting to be a fairly (Inaudible) question —

    Dominick L. Manoli:

    Yes.

    Potter Stewart:

    — that was the same kind —

    Dominick L. Manoli:

    But as I read (Voice Overlap) —

    Potter Stewart:

    — of provision we have there.

    Dominick L. Manoli:

    Reading the case, going back to the boards’ decision.

    It seemed to be essentially like the Sand Door situation that we have before us.

    (Inaudible)

    Dominick L. Manoli:

    Well, Mr. (Inaudible) tells that there was a union rule involved there but I —

    Potter Stewart:

    I think there was.

    Dominick L. Manoli:

    I’m sure you’ll — but —

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    Yes sir.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    It was in my little note —

    (Inaudible)

    Dominick L. Manoli:

    — that he — no, no, its — I have it here somewhere, the — but passing over that he is responding to Senator Pepper.

    (Inaudible)

    Dominick L. Manoli:

    He’s responding to Senator Pepper because Senator Pepper was taking the position that certain types of secondary boycotts were alright where a union was trying to preserve organizational benefits or bondages or gains that — or a union was trying to engage in a secondary boycott against some employer whose standards or conditions of employment were not as good as that.

    The union thought that they should be.

    Senator Pepper was making the argument.

    That was a good secondary boycott in that situation.

    So in response to that line of arguments Senator Taft says —

    Where do you read that?

    Dominick L. Manoli:

    The — I’m reading from the brief of the other side in Number 110, 111, and it’s at page 63.

    That’s —

    Hugo L. Black:

    63?

    63, Your Honor.

    He says but passing over that and assuming that the employer has a contract with the employees and the only difference is over wages.

    Let me say that the principal point of the Senator from Florida is similar to that in the case of the New York Electrical Workers Union which said, “We will not permit any material made by any other union or by any nonunion workers to come into the New York City and be put into any building in New York City.

    That is the way Senator Pepper viewed that case.

    And they say —

    Hugo L. Black:

    Senator Taft.

    Dominick L. Manoli:

    Senator Taft, I should say.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    I am suggesting — it helps us that the Allen Bradley case, it is not our case here.

    In our case, the employees of the contractor Frouge we’re not refusing to install these doors because the manufacturer of the doors was rep — his employers were represented by some other union.

    They had no concern.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    They were not con —

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    I think that we are simply stating a fact that it came from out of state.

    Hugo L. Black:

    (Inaudible)

    Dominick L. Manoli:

    It may have been a crucial fact in deciding the antitrust aspect of it but in viewing it under (Inaudible), I think he was simply stating the fact that they came — it would have made no difference to this argument whether they came in or out of the state.

    Because the union there as he saw the case was refusing to handle the products of another employer whose people were represented by another union.

    Now, I think I better get to my time has — would be to run fast.

    Abe Fortas:

    Be sure to get to —

    Dominick L. Manoli:

    Now —

    Abe Fortas:

    — if you will.

    Dominick L. Manoli:

    Let me —

    Abe Fortas:

    You will address —

    Dominick L. Manoli:

    Let me address myself —

    Abe Fortas:

    — my question?

    Dominick L. Manoli:

    Let me address myself to that question and I think I know what may be troubling the Court there because there seems to be some apparent inconsistency between the board saying in the case of Frouge, it was permissible legitimate primary activity but in the case of the other employer it was secondary.

    Now let’s see if I can explain that.

    All of these contractors here were parties to the collective bargaining agreement that effect of which was to bar them from subcontracting the finishing of — the finishing work on doors.

    Three of these employers — three of these contractors, I’m sorry, I moved away from that.

    Dominick L. Manoli:

    Three of these contractors here who are parties to this agreement here, they ignored their agreement and the accepted specifications from the project owners and those specifications called for finished doors.

    The fourth contractor, Frouge, the fourth contractor, his specifications did not require him to use those doors.

    Now with respect with to the three employers who in this regard of their own collective bargaining agreement or whatever obligations they may have owed to their employees under that agreement in disregard of that, they have taken as I say a contract which is now taking the work out of their hands, and of course their employers have been denied of certain work.

    Now in that case, the board held that this was secondary activity because the control, the control over the dispute had passed from those contractors to the project owners.

    That in that particular context the board then deemed the union’s refusal to install the doors as being direct at least impart, that had been directed at least to impart to neutral employers namely the project owners.

    Abe Fortas:

    Except that the contractors in those three cases deliberately did it and did it as you’ve just said in violation of their contract.

    Dominick L. Manoli:

    Yes.

    That’s right.

    Abe Fortas:

    So, if this thing gets to me, it look more and more like Tweedledee and Tweedledum, doesn’t it?

    Dominick L. Manoli:

    The — it — it’s sticky, Your Honor.

    Abe Fortas:

    Well, it’s sticky, (Voice Overlap) —

    Dominick L. Manoli:

    And of course, I don’t know what I should take comfort out of the fact that those — that particular part of the — the face of the board’s case is not before this Court.

    Now to what is before this Court —

    Abe Fortas:

    At least before — it’s before this Court — but maybe before this Court as an intellectual theoretical matter, critical importance even though it may not be in the issues that the —

    Dominick L. Manoli:

    You — we can’t disregard it.

    Now with respect to Frouge, I am trying to just round out the answer to your question.

    With respect to Frouge, Frouge again he was — had some — an obligation to his employees under a collective bargaining agreement but his specifications did not call for prefinished doors, therefore their resolution to the dispute was what — it — lay with him.

    And he is the target.

    He is the only target of the union’s action.

    Now, let me go on if I may —

    Potter Stewart:

    The other one — I —

    Abe Fortas:

    Yes?

    Potter Stewart:

    I thought that the — if the neutral employers here were the manufacturers of the prefabricated doors, not the contractors in Philadelphia.

    Abe Fortas:

    The —

    Potter Stewart:

    Am I all wrong about that, am I — then I’m —

    Abe Fortas:

    In the case of Frouge, in the case — let’s take the case of Frouge.

    He is the primary the primary employer.

    Potter Stewart:

    Yes.

    Abe Fortas:

    Of course the manufacturer has got nothing to do with this dispute.

    Potter Stewart:

    Of the — well, if —

    Abe Fortas:

    He —

    Potter Stewart:

    But the manufacturer of the prefabricated doors —

    Abe Fortas:

    He — that’s right.

    Potter Stewart:

    — and his employees and —

    Abe Fortas:

    But —

    Potter Stewart:

    — and the public he serves (Voice Overlap) —

    Abe Fortas:

    But the action —

    Potter Stewart:

    — were being hurt and they are neutral people.

    Abe Fortas:

    The action of the employees however is not directed against them, it’s directed against their own employer.

    Potter Stewart:

    Well, that’s the primary dispute.

    Abe Fortas:

    That’s the primary dispute.

    Now, what effect it may have upon the manufacturers of the door, that is simply incidental at least in our view —

    May I ask you —

    Dominick L. Manoli:

    — is incidental to the primary dispute.

    Abe Fortas:

    Well, Mr. Manoli this has absolutely no relationship that I can see with the — your argument.

    That is to say the fact — the determinative factors that you have laid out here which relate to the intent of the particular union and nothing whatever to do with this factor of who controls so far as I can see it.

    Dominick L. Manoli:

    Well it could —

    Abe Fortas:

    Now, on page 5 of Government’s brief in 111, say that the board reasoned that since the three contractors in contrast to Frouge did not have control over the work that the union sought to protect for its employees.

    The union’s objective was secondary.

    Now your argument unless I have missed it, your argument as to the correct analysis of the statutory provisions here has nothing whatever to do with control.

    It has to do with the intent, the purpose of the union.

    Now that’s what I like you to reconcile for me or argue abandoning the board’s distinction.

    I would not off hand, I would not find that side religious.

    Dominick L. Manoli:

    I might get fired.

    Abe Fortas:

    I would define that — define that with the (Voice Overlap) —

    Dominick L. Manoli:

    Your Honor, the element of control as we think that the board saw this is simply one of the elements that indicates who is the primary target of the union’s refusal or work stoppage?

    Now in this particular case, these employees had traditionally been performing this work.

    They had an agreement with their employer that they were going to get this work.

    And at the point where the dispute came to a head, the point where the dispute came to a head, Frouge alone had complete control over the resolution of that dispute.

    And he could have resolved the dispute.

    Dominick L. Manoli:

    He could have settled it.

    And therefore because of all of these factors, all of these factors, he is the sole and primary target of the union’s action.

    Abe Fortas:

    Did the board make any findings as to the intent or purpose of the union in the Frouge case?

    Dominick L. Manoli:

    The board found that the agreement was a work preservation agreement and that the employers —

    Abe Fortas:

    I know but that’s a conclusion.

    How about the specific point that you have been emphasizing in your argument?

    If the board find that the purpose was — of the union was work preservation rather than something else.

    Dominick L. Manoli:

    Yes, there is a specific finding to that effect.

    I have only apparently four-five minutes and I want to get into the Section 8 (e) aspect of the case.

    The argument of course here is being made that the agreement here between the contractors and their employees which barred the use of these prefinished doors —

    Byron R. White:

    I know, what the — did the Court of Appeals decide against doing that?

    Dominick L. Manoli:

    Yes sir.

    Byron R. White:

    They said that — that’s it’s an 8 (e) as well against the one employer.

    Dominick L. Manoli:

    The agreement generally, the court, lower court —

    Byron R. White:

    Yes.

    Dominick L. Manoli:

    — found was bad, was valid — in violation of 8 (e).

    Now the — Section 8 (e) does not have in specific terms the primary — secondary provision of Section 8 (b) (4).

    And as I said yesterday, the literal language of Section 8 (e) with the construction in the proviso, whatever significance maybe and I’ll try to come to that before the end of my time.

    With that to one side, the literal language of Section 8 (e) would appear to make this particular agreement unlawful because the agreement in effect permits the signatory employer to refrain from buying finished doors from some other employer.

    But the literal language of the statute, I again suggest is not the end of our inquiry.

    I don’t think we needed to subscribe to the proposition that the surest way to misread the statute is to read it literally.

    But is a notorious fact that the 1959 amendments to this Act were far from models of legislative clarity.

    And Section 8 (e) is unusually deceptive.

    It is unusually deceptive and we can only understand it.

    We can really only appreciate the true meaning of that language only in the like of it’s ever — of its genesis and its legislative evolution.

    Now Section 8 (e), the language of Section 8 (e) tracks the language of Section 8 (b) (4) (a) or now presently 8 (b) (4) (b) in the current statute.

    There was no intent on the part of the Congress to reorient the thrust of the statute with respect to boycotts or to redefine them.

    As one commentator has set, the legislative evidence is overwhelming that Congress’ primary concern was with a hot cargo clause and in the utility.

    (Inaudible)

    Dominick L. Manoli:

    The — I’ll never be able to finish it.

    Dominick L. Manoli:

    In their utility for circumventing, the then existing ban against secondary pressures, and I’ll have to telescope this.

    The evidence that — the legislative evidence I think unquestionably demonstrates that the overriding concern and the preoccupation of the Congress when it enacted Section 8 (e) was with hot cargo clauses.

    Clauses which would bar an employer from doing business with another employer involved in a dispute or nonunion or otherwise disfavored.

    And that was the sole purpose of the — of Section 8 (e) was to deal with those clauses which were repeatedly defined along the lines that I have suggested.

    Abe Fortas:

    You mean where — that there again, Congress intended that the intent or purpose could be determinative?

    Dominick L. Manoli:

    Yes sir, yes sir.

    I wish I had more time.

    Byron R. White:

    Well, could I ask you just — is it your claim that the — is it the board’s claim that the — that in the case of one employer there was a violation of 8 (b) (4) and (B)?

    Dominick L. Manoli:

    In the case of the three contractors who with accepted —

    Byron R. White:

    (Inaudible)

    Dominick L. Manoli:

    — specifications calling for the finished doors, the board found a violation of 8 (b) (4) (B).

    Byron R. White:

    On those three?

    Dominick L. Manoli:

    Yes sir.

    Byron R. White:

    But not — but they claim not of 8 (e)?

    Dominick L. Manoli:

    No, the board found that the agreement between all of the contractors and the union was valid —

    Byron R. White:

    Alright.

    Dominick L. Manoli:

    — under the work preservation agreement under 8 (e).

    Byron R. White:

    Yes.

    So they say there is no 8 (b) (4) (A) —

    Dominick L. Manoli:

    Yes.

    Byron R. White:

    — On those three contractors?

    Dominick L. Manoli:

    The —

    (Inaudible)

    Dominick L. Manoli:

    He — yes, that’s my collection.

    They dismissed the 8 (b) (4) (A) —

    Byron R. White:

    Or the board does not claim that 8 (e) and 8 (b) (4) (B) are to be construed the same way.

    Dominick L. Manoli:

    Yes, the board has said in the (Voice Overlap) —

    Byron R. White:

    I know they have said it but I don’t understand (Voice Overlap) —

    Dominick L. Manoli:

    In the Cardinal case — in our case here, the board separated the 8 (e) agree — the agreement.

    Byron R. White:

    Yes, I know but I just had a very great difficulty understanding why this case goes to three contractors that — can get a (b) and not an (a) but maybe I was (Inaudible)?

    Dominick L. Manoli:

    Thank you.

    Earl Warren:

    Mr. Mahin.

    Charles B. Mahin:

    Mr. Chief Justice.

    In the few minutes, I have left, if the Court please I’d like to stress just two points.

    First, to the control point to which Mr. Manoli has just addressed himself and second to this primary and secondary dichotomy which the board presses when it suits a purpose and disregards when it doesn’t.

    Now first, I’d like to suggest that we must remember that in this case, this union boycott on all four jobs prevented the use of prefabricated doors and Rule 17 prevented the use of prefabricated doors in Philadelphia.

    Now let’s look at this control theory.

    I don’t know what the board means.

    It changes its view on it but at best, a control is an evidentiary guide where you have a mixed up common-situs situation where you have obscure objectives.

    At best that’s it.

    Now it serves no purpose where you have a clear cut objective anymore than any other presumption of evidence, where you have a clear cut evidence of objective against boycott doors which you have here.

    Now, I —

    Potter Stewart:

    Who is the neut — who was the neutral employer in this case?

    Charles B. Mahin:

    If — You honor, I’m glad you ask that.

    In this case there is no neutral employer.

    There’s always a fight between the union and the local contractor about prefabric — about using somebody else’s doors.

    There’s a three-way fight.

    There is no neutral.

    This talk about neutral employers just doesn’t fit here.

    Now, on the control theory, let’s apply it below.

    Whatever trust control had, where did it point?

    It pointed only to the con — project owner on the three jobs where the doors were specified.

    Not elsewhere.

    That’s the only place it could point, whatever thrust it had.

    But what did the board claim?

    That the objective was not only the owners but the manufacturers and the distributors of the door, there it saw irrespective of controller on the three jobs where violations were found.

    There was found a boycott objective against doors and the manufacturers.

    And so with Frouge, it was identically the same.

    Whatever trust control had pointing at Frouge, was purely incidental because on that case the boycott objective was precisely the same.

    It was against the prefabricated doors.

    Charles B. Mahin:

    Now, I want to hit this next point on this primary, secondary formula.

    If the Court please, a reading —

    William J. Brennan, Jr.:

    Well, the argument you’ve just made is, even if there were anything that a primary or secondary formula on this record, the finding is compelled that this was aimed at the doors and not at any dispute.

    Charles B. Mahin:

    You’re right Your Honor, nothing on this primary secondary business.

    In the first place, if a reading in the board’s case reveals that this formula is applied in about a third of their cases and the Court cases in the sense of a one-two-three dispute, it doesn’t work out that way.

    Now, there are many boycott situations that involve the one-two-three business.

    But many product boycotts which Congress intended to eliminate clearly do not involve those and I cite Allen Bradley.

    And if the Court please, my good friend, Mr. Manoli misquotes this case completely because in that case, the union was not concerned with nonunion products from elsewhere or other things.

    It barred all products regardless of union affiliations.

    I pointed out, it barred products from a sister — local over in Jersey City.

    And he didn’t finish the quote from Senator Taft.

    He said, “We will not permit any material”.

    This is — he’s talking about the Bradley Case.

    This is page 63 in our briefs.

    We will not permit any material made by any other union or any nonunion worker to come into New York City and to be put in to any building in New York.

    They just can’t bring it in, union or nonunion, they didn’t care.

    The principle announced by the Senator of Florida would make that stand lawful as it is lawful today.

    Of course, we proposed to change the law in that effect.

    And gentlemen, the impact of Allen Bradley in Congress and the impact in the cases for 20 years has been that it was an embargo type product — boycott.

    Now —

    Abe Fortas:

    Well, the position you’re taking if I —

    Charles B. Mahin:

    Yes.

    Abe Fortas:

    — correctly understand that, cut seems to me, they cut pretty deep.

    It would mean that the union can in no case — a construction union can in no case make a valid contract to assure that its members get to do a traditional and historic work.

    Charles B. Mahin:

    Your Honor —

    Abe Fortas:

    He might do that, might he not?

    Charles B. Mahin:

    Sir —

    Abe Fortas:

    Is that the thrust of your position?

    Charles B. Mahin:

    It might except Congress has already considered that situation.

    Certainly, the union has the right and the employer have the right to control what work is done with reference to things which come to the jobsite.

    Charles B. Mahin:

    The proviso expressly provides that.

    But —

    Abe Fortas:

    But —

    Charles B. Mahin:

    — the point of it is, what —

    Abe Fortas:

    But it has to take them as they are brought in to the jobsite where there’s —

    Charles B. Mahin:

    That’s correct.

    They can divide it —

    Abe Fortas:

    — prefabricated — fitted — pre-fitted or whatnot.

    Charles B. Mahin:

    And this law —

    Abe Fortas:

    This was (Voice Overlap) —

    Charles B. Mahin:

    — this proviso, if the Court please was directed to that.

    It’s the localized situation, a mixed up thing which you have in your common-situs in other case.

    But Congress looking at it said, and Senator Taft said, and everybody else said, this proviso does not apply to products manufactured at the job — away from the factory to be brought in here.

    Why?

    Because the freedom they were giving, these restrictive contracts was lo — limited to the localized situation.

    And in the General Miller Work, if the Court please, there was no agreement there at all.

    There was a debate about the agreement.

    And there was a debate whether it had a union label clause like ours here.

    And there was a debate about whether it banned on pre-hanged doors but the crux of the decision and the reason for the Court’s decision, I presumed to suggest.

    And the board’s decision was that there was boycott on prefabricated doors and the justice’s recollection that is absolutely correct.

    Now, on — so much for this primary secondary dispute business, if Congress had wanted to write primary secondary and secondary boycotts into the Act, it could readily have done so.

    And in the 1959 legislature, every bill of the opponents of the Landrum-Griffin Amendments put into their bill a primary secondary dichotomy, which the board’s talking about, everyone of them, the Elliott Bill and the Shelly Bill and the Roosevelt Bill.

    And Congress expressed — they wrote it into 8 (b) (4) (B).

    And Congress expressly rejected that bill and then adopted instead the Landrum-Griffin Bill which does not have any such prescription.

    Hugo L. Black:

    Is that what Senator Pepper was arguing?

    Charles B. Mahin:

    Senator Pepper was arguing the same principle but back in 1947 in connection with the original Taft-Hartley amendments, Your Honor.

    Hugo L. Black:

    Is that the one presented today (Inaudible)?

    Charles B. Mahin:

    Yes, and he — in that connection cited the quote that I quoted about — ago.

    Now, with reference to this matter of work preservation, may I suggest this; the Government’s argument here that work preservation as a sole objective is academic in this case.

    The argument that 8 (e) does not ban sole work preservation objectives — agreements is academic here because Rule 17 by — I feel any realistic appraisal had dual objectives.

    Charles B. Mahin:

    It had the work preservation objective but Your Honors, the most obvious objective if one can read and see and understand what the Court and the board said is that another objective was to ban prefabricated doors from Philadelphia.

    And that’s what it did, 4000 of them.

    And they’re not going in yet.

    Now, that being the case, this is what the Court talked about in Denver Building Trades Case, that this statute contemplates dual objectives.

    And that the existence of the lawful objective does not excuse an unlawful objective.

    Now, if the —

    Byron R. White:

    Well, the —

    Charles B. Mahin:

    I’m sorry.

    Byron R. White:

    How about the proviso that this Section will not interfere with primary activity in 8 (b) (4) (B)?

    Charles B. Mahin:

    I’m so glad you asked that Mr. Justice.

    Byron R. White:

    So am I.

    Charles B. Mahin:

    Because that provides one of the best illustrations of the distinction between this primary strike business the board is talking about and a real proscribed objective.

    Now, the propend — the primary —

    Byron R. White:

    Well, do you think you have to argue that there is no primary activity here?

    Charles B. Mahin:

    Oh, no.

    I am arguing that the board sees only primary activity.

    It’s — it looks —

    Byron R. White:

    I was going to ask you — that is — I understand that — and I — I think I understand that you say there was both —

    Charles B. Mahin:

    Exactly.

    Byron R. White:

    But if it’s — but if the proviso says that this section is not to result in the interference with primary activities, is that what it says?

    Charles B. Mahin:

    Yes.

    Byron R. White:

    And if the only way to get rid of the other objective, the embargo as you call it —

    Charles B. Mahin:

    (Inaudible)

    Byron R. White:

    The only way you can stop that is by stopping primary activity too.

    Charles B. Mahin:

    Then you have illegality —

    Byron R. White:

    Well, I know but it seems to me you’ve (Inaudible) — you’ve done just exactly what the proviso says you can’t do.

    If you can’t stop the other objective without stopping your primary objective, why do you not violate the embargo?

    I mean, violate the proviso.

    Charles B. Mahin:

    Now that — you mean the primary strike proviso?

    Because —

    Byron R. White:

    Yes.

    Charles B. Mahin:

    — Your Honor, the primary strike proviso came from the International Rice Milling case.

    And it said that a primary strike in picket lines at that strike premises —

    Byron R. White:

    I know.

    You would like to (Inaudible) or view it like — to construe the proviso in accordance with it’s legislative or case history —

    Charles B. Mahin:

    Again —

    Byron R. White:

    You don’t want to construed 8 (e) or 8 (b) (4) (B) that way.

    Charles B. Mahin:

    Oh!

    Byron R. White:

    You want to construe it on its face.

    Now, what about on the face of the proviso?

    Charles B. Mahin:

    Alright.

    On the face of the proviso, the proviso does not permit the Act to apply the primary strike.

    And that’s — statutory pur —

    Byron R. White:

    What does it say, primary what?

    Charles B. Mahin:

    Strikes.

    Byron R. White:

    That’s the word it used?

    Charles B. Mahin:

    The primary strikes or picketing, the proviso, the 8 (b) (4) (B) is the one you’re talking about, yes.

    Now that was merely to make —

    Byron R. White:

    Is this a strike?

    Charles B. Mahin:

    Huh?

    Byron R. White:

    This is a strike?

    Charles B. Mahin:

    There was a strike here.

    Byron R. White:

    Yes, alright.

    Charles B. Mahin:

    Yes.

    Byron R. White:

    There was a strike.

    Charles B. Mahin:

    On the purpose of that —

    Byron R. White:

    And it is a primary strike?

    Charles B. Mahin:

    It is a primary strike for a proscribed objective.

    Now, to illustrate the International Rice Milling situation if I may —

    Byron R. White:

    I know but it’s a —

    Charles B. Mahin:

    If the trucks which approached that Kaplan plant which was struck had been stopped by the pickets because the trucks were full of prefabricated doors manufactured elsewhere under the reasoning of that case and the other three decided the same day, I am sure this Court would have held it illegal.

    But their dispute was not because of that, their dispute was with the Kaplan Mill for recognition and the like.

    Byron R. White:

    You don’t care whether there was a labor dispute with the other employer whose product was being boycotted or not.

    Charles B. Mahin:

    I say that would have been a valid thing but it isn’t necessary.

    The Court and the boards for instance, Your Honor have never required the existence of a primary dispute to trigger the sanctions of Section 8 (b) (4) (B) —

    Byron R. White:

    But you do agree then that we are having — if the — that the — that one of the things you have to do in this case is to explore the limits of Fibreboard?

    Charles B. Mahin:

    Exactly.

    And Fibreboard, Your Honor, if you come down to it and read it on its limitations, it is not in the collision course with a violation of 8 (e) because they’re in different ballparks.

    If you read Fibreboard as limited —

    Byron R. White:

    Different ballpark?

    Charles B. Mahin:

    As limit — I’m sorry.

    As limited by your opinion and the restrictions on Fibreboard, it had to do with subcontracting on the site and it did not reach the subject of the boycott of prefabricated products coming to the site.

    And the parallel with the proviso of 8 (b) (4) (B) is the same.

    They permitted these agreements on the site but made it clear that the 8 (e) proviso did not validate boycotts of fabricated products made away from the site.

    And the parallel is the same and the distinction of Fibreboard is the same as the proviso in 8 (e), if the Court please.