union officer or union employee who is also an employee or former employee of such employer;

(3) Payments to satisfy or settle a legal judgment or arbitration award; (4) Purchase or sale of an article at the prevailing market price in the regular course of business;

(5) Deduction of money for union dues pursuant to a valid check-off agreement;

(6) Payments to a valid employee benefit trust fund, including payments to a trust fund for the purpose of pooled vacations, or holiday, severance or similar benefits; or defraying the costs of apprenticeship or other training programs.

(For legislative history, see excerpt from Senate Committee Report No. 1684 and excerpt from Senate Committee Report No. 741, pages 122, 123.)

SECONDARY BOYCOTTS

Since the passage of the Taft-Hartley Act in 1947, decisions by the National Labor Relations Board and some courts have created a halfdozen major loopholes in the Taft-Hartley provisions against secondary boycotts. Thus, the subject of the secondary boycott was a highlight in the demand for labor law reform.

The Landrum-Griffin Act attempts to close the major boycott loopholes and to stop most varieties of the secondary boycott. Two limited exceptions, however, are permitted for favored unions.

What Boycott Loopholes Existed Under the
Taft-Hartley Act?

The core of the secondary boycott prohibitions was found in section 8(b) (4) of the Taft-Hartley Act. This section made it an unfair labor practice for a union to make neutral parties take the union's side in organizing drives or labor disputes, real or fancied. The old law made it an unfair labor practice for a labor organization or its agents: "to engage in, or to induce or encourage employees of any employer to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services

The italicized words in the above "paragraph" illustrate four boycott loopholes in the Taft-Hartley Act. They are:

1. Encourage employees was interpreted to mean that it was illegal to ask employees to stop handling the products of another employer, but that it was legal to pressure employers to stop doing business with another

firm. Union agents merely bypassed the employees and applied their coercion on the employer; thus, the secondary boycott was not illegal.

Now, however, the Landrum-Griffin Act makes it unlawful to threaten, coerce, or restrain "any person," be he employer or employee, to engage in a secondary boycott.

2. Any employer was twisted to mean only persons defined in the definition section of Taft-Hartley as an "employer." The NLRB refused to use the dictionary definition of the word "employer." Because the definition section of Taft-Hartley specifically excluded persons subject to the Railway Labor Act and political subdivisions of a state, the NLRB decided that, for example, the inducement of railroad employees or employees of a city harbor commission was not illegal because they were not employees of an "employer" covered by the law.

Under the Landrum-Griffin Act, inducement or encouragement of any individual employed by "any person" to engage in secondary boycott activities is unlawful.

3. Concerted refusal was interpreted by the United States Supreme Court to mean that the encouragement or inducement of a single or key employee to refuse to handle the goods of another employer was not an illegal boycott. The court felt that the term "concerted" required group action by the union and that several employees would have to be induced to engage in a boycott before it would become illegal.

By striking the word "concerted" from this Taft-Hartley Act section, the Landrum-Griffin Act prohibits the inducement of any person or persons, regardless of the number, to engage in a secondary boycott. (For legislative history, see Rep. Pucinski's statement, page 141.)

4. In the course of their employment was interpreted to mean that it was lawful for a union or its agents to persuade workmen not to accept or take employment, as long as the persuasion occurred before any workmen began work on the job. This loophole had been used in industries where unions controlled the labor supply in the community through a hiring hall or similar device. The NLRB held that it was not an illegal boycott for a union to refuse to supply workmen to an employer for a particular job. In 1959, however, the National Labor Relations Board partially eliminated this loophole by holding that where contractors and a union have an agreement under which contractors must apply to the union for needed workmen, the entire arrangement under which journeymen are assigned to various contractors is "in the course of employment." 1 The Landrum-Griffin Act Act continued this partial loophole by leaving untouched the phrase "in the course of his employment."

What Boycott Loopholes Developed
Through Interpretations?

The other secondary boycott loopholes resulted from interpretations of the Taft-Hartley Act rather than from its language. These were the

1

1 Local 636 Plumbers v. Detroit Edison Co., 123 NLRB No. 37; 43 LRRM 1404. The case has been appealed by the union.

infamous "hot cargo" contract clauses and a type of picketing called "common situs" picketing.

5. Hot Cargo Boycotts resulted from a clause in a collective bargaining contract in which an employer agreed to stop doing business with another employer if the union, sometime in the future, should consider the unnamed secondary employer "unfair." The NLRB at first upheld such agreements and permitted them to be used to circumvent the intent of Congress in the Taft-Hartley Act. In 1955 the NLRB reversed itself and held that such contracts could be made but were unenforceable. The Supreme Court upheld this view in 1958.

Under the revised language of 8(b)(4)(A) of the Taft-Hartley Act, union pressure upon an employer to make up an agreement is an unfair labor practice. In addition, a wholly new subsection added to the TaftHartley Act by the Landrum-Griffin Act outlaws the "hot cargo" contracts themselves. This provision is discussed later in this chapter.

6. Common Situs Picketing resulted when early NLRB decisions permitted unions to follow an employer or his product to places of business or sites where other employers had men at work. Picketing this common site of employment resulted in unionized employees of other or secondary employers leaving their jobs. Later the NLRB placed limitations on this type of boycott picketing. In general, the Labor Board has held that if the primary employer has a place of business in the area which can be picketed, the union does not have the right to picket sites of common employment where secondary employers would be adversely affected by the picketing.

So as to leave the law intact as it had been construed under the old language of the Taft-Hartley Act, the Landrum-Griffin Act contains a proviso to Section 8(b)(4) (B) that preserves the right of a union to conduct a primary strike or to engage in primary picketing. (For legislative history, see excerpt from House Conference Report regarding Sec. 704(a), page 144, and Senator Goldwater's statement, page 145.)

What Boycott Loopholes Were Closed by the
Landrum-Griffin Act?

Paragraph (4) of Section 8(b) (4) of the old Taft-Hartley Act has been rewritten by the Landrum-Griffin Act to make it an unfair labor practice for a labor organization or its agents

"to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce ." (For text of Sec. 704 (a), see page 199.)

Note that the old "encourage employees of any employer" has been changed to "encourage any individual employed by any person," and that the term "concerted refusal” has been amended to mere “refusal."

Thus, three of the four statutory loopholes have been closed. "Course of employment" is still in the law, although its use has been limited greatly by the NIRB's Consolidated Edison Co. decision. (For legislative history, see Rep. Griffin's statement regarding Sec. 704 (a), page 142, and Senator Goldwater's statement, page 145.)

How Was the Hot Cargo Loophole Closed?

Although the courts had made hot cargo secondary boycotts ineffective, the Landrum-Griffin Act deals with the problem by outlawing this type of boycott for all but two classes of unions. A clause in paragraph (A) of Section 8(b)(4) makes it an illegal secondary boycott and therefore an unfair labor practice, to force or require an employer to enter into an agreement which is prohibited by Section 8(e).

Section 8(e) is the new unfair labor practice written especially to stop hot cargo secondary boycotts. (For text of Sec. 704 (b) which incorporates 8(e) see page 200.) It makes such contracts, expressed or implied, unenforceable and void. (For legislative history, see Rep. Roosevelt's comments, page 147, Senator Morse's comments, page 147, Senator Lausche's exchange with Senator Curtis, page 148, excerpt from House Conference Report regarding Sec. 704(b), page 149, and Senator Goldwater's comments, page 155.)

For example, agreements whereby an employer agrees to furnish his employees with only union made tools or clothing are outlawed. Agreements to use only union serviced vending machines on the premises are illegal. Agreements to sell only union made merchandise are now invalid. Agreements to employ only union contractors are now unfair labor practices.

Two industries, however, have been singled out for specific exemption from the hot cargo provisions of new Section 8(e) of the Taft-Hartley Act. These special exemptions are covered by two provisos, one dealing with the construction industry and another with the garment industry.

How Are the Building Trades Unions Exempted?

An exception is written into Section 8(e) to permit a limited use of hot cargo secondary boycott contracts. The Building Trades unions are permitted to make such contracts if they are restricted to the contracting or subcontracting of work to be done at the site of construction

or repair. There is no intention to permit the Building Trades unions to use hot cargo clauses to impose product boycotts to keep certain products off the market. (For legislative history see Senator Kennedy's remarks regarding Sec. 704(b), page 148, excerpt from House Conference Report, page 149, Senator McNamara's statement, page 150, Rep. Kearns remarks, page 152 and Rep. Barden's comment, page 157.)

The effect of this special exemption for the construction unions permits these organizations to seek and enforce contract clauses from employers in contracting for jobs. The proviso in Section 8(e) would permit a construction union and a general contractor to agree that the contractor will not employ non-union subcontractors. It may also be used to win agreements from unionized subcontractors that they will not accept jobs from general contractors whose employees prefer not to join a union. There is doubt that Building Trades unions may strike to win a hot cargo clause in their collective bargaining contract. (For legislative history see Senator Goldwater's statement, page 157.)

How Are the Clothing Industry Unions Exempted?

The proviso giving special boycott privileges to unions in the clothing industry is broader than that given the Building Trades. It covers two points: (1) no restriction upon the use and enforcement of hot cargo secondary boycott contracts by unions and employers engaged in the production of apparel and clothing, and (2) a general exception from Section 8(b) (4) (B) of the new law. The result is that unions in the clothing and apparel industry may use a secondary boycott to involve neutral employers in labor disputes with primary employers when an object of the boycott is to require the primary employer to stop doing business with another person or to require such an employer to recognize and bargain with the union even though the union does not in fact represent a majority of the employees of the primary employer. Apparently the purpose of those advocating special legislation for the garment workers' unions is to permit union control over the industry.

There is a limitation, however, in that the persons allowed to become secondary boycott victims are identified as "persons in the relation of a jobber, manufacturer, contractor or subcontractor, working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry”. (For legislative history, see Senator Goldwater's statement, page 156, Senator Kennedy's remarks, page 148, and excerpt from House Conference Report, page 150.).