Connell Construction Co. v. Plumbers & Steamfitters Local Union No. 100

CO., INC. PLUMB- CONNELL CONSTRUCTION NO. LOCAL UNION ERS & STEAMFITTERS UNITED ASSOCIATION OF JOURNEYMEN OF THE PLUMBING

& APPRENTICES & PIPEFITTING OF INDUSTRY

THE AND UNITED STATES

CANADA, AFL-CIO Argued No. 73-1256. November 1974 Decided June J., opinion Court, delivered the Powell, in which Burger, J., C. JJ., joined. White, Blackmun, Rehnquist, J., dissenting opinion, post, p. J., filed a Douglas, 638. Stewart, dissenting filed a opinion, which Douglas, Brennan, Mar- JJ., joined, post, p. 638. shall, Jr., Joseph Canterbury, F. argued the cause and filed briefs for petitioner.

David R. Richards argued the cause and brief filed a for respondent.*

Mr. Justice Powell delivered opinion the Court. building in trades union supported this case its

efforts organize mechanical by picket- subcontractors ing general certain contractors, including petitioner. The objective union’s sole to compel was general the con- tractors to agree that letting subcontracts for mechani- cal work they only would deal with firms that were * Briefs amici urging curiae by reversal were filed C. Gerard Smetana, Jerry Ehrlich, Lawrence Kronenberg, D. Milton Smith and for the Chamber of Commerce States; by of the United Vincent J. Apruzzese, Mastro, Francis A. and William L. Keller for the Associ ated General al.; Contractors of by America et and Kenneth Mc- C. and Robert E. Williams for Air-Conditioning Guiness and Refrigeration Institute et al. Briefs of amici urging curiae affirmance were filed Solicitor Bork, General Peter Nash, G. Irving, Hardin, John S. Patrick Come, Norton J. and Linda Sher for the National Labor Relations Board, Woll, and J. Albert Gold, Laurence and Thomas E. Harris for -the American Federation of Congress Labor and of Industrial Organizations.

parties agree- union’s current collective-bargaining ment. The union disclaimed in representing interest general employees. contractors’ In this case picketing succeeded, petitioner seeks to annul agreement resulting competi- as an restraint on illegal tion under federal and state law. The union claims immunity from federal antitrust statutes and argues federal labor regulation pre-empts state law.

I Local 100 is the bargaining representative for workers in the and mechanical When plumbing trades Dallas. this litigation party .multiemployer it was began, a bargaining with the Mechanical Contractors Association Dallas, group of about 75 mechanical contractors. That contract favored contained a “most nation” clause, by which the union if agreed that it granted employer a more to any favorable contract it would extend same terms all members Association.

Connell Construction Co. is a general building jobs by contractor Dallas. competitive It obtains all bidding subcontracts plumbing and mechanical work. Connell has followed a policy awarding these subcontracts on the of competitive it bids, basis has done business with both union and nonunion subcontrac- tors. employees represented Connell’s are by various building Local trade unions. never sought has represent them bargain or to with Connell on their behalf. November Local 100 asked agree Connell to that only it would subcontract mechanical work to firms that had a with the current contract union. It demanded the that Connell sign following agreement: “WHEREAS, the contractor and the union are in the engaged construction industry, and union desire the the contractor and “WHEREAS, of sub- in the- event agreement applying to make an (e) of the with in accordance Section contracting Act; Relations Labor-Management agree- it is understood that “WHEREAS, nor does the does grant, ment the contractor not bargaining seek, recognition union as the collective employees the any signatory of representative contractor; and further understood that the

“WHEREAS, it provided applies herein subcontracting limitation work which contractor does only to mechanical perform employees uniformly own but not with his subcontracts to other firms; contractor union

“THEREFORE, mutually respect with within agree falling to work scope of this is to be done at that construction, alteration, painting the site of repair any or other building, structure, works, the contractor should contract or subcontract [if] falling the aforesaid work within the normal trade jurisdiction of the union, said contractor shall con- tract or subcontract such work firms that only to parties executed, are to an current collective bar- gaining agreement Local Union 100 United Association of Journeymen Apprentices Plumbing Pipefitting Industry.” When sign Connell refused to this agreement, Local 100 a single picket stationed at one of major Connell’s con- struction sites. About 150 workers walked job, off the and construction halted. Connell filed suit state enjoin court to picketing as violation of Texas anti- trust laws. Local 100 removed the case to federal court. Connell signed then the subcontracting agreement under protest. complaint It amended its to claim

621 1 §§ violated and 2 of the 26 Act, Sherman 209, amended, Stat. as 15 U. S. C. and 2, §§ and was therefore sought invalid. Connell to this declaration effect and injunction against any an further efforts to force it to sign agreement. such an

By the time trial, the case went to Local 100 had sub- agreements mitted identical to a general number of other contractors in Dallas. Five had and the signed, others Union was a selective waging picketing campaign against those who resisted.

The District held the subcontracting agree- Court ment exempt was from federal antitrust laws because it was authorized proviso construction industry (e)8§ Act, 452, National Labor Relations 49 Stat. added, as 543, 73 Stat. (e). U. C. The § S. court legislation also held that federal pre-empted State’s antitrust laws. L. R. (ND R. M. 3012 Tex. 1971). The Court of Appeals Fifth Circuit af- for. firmed, 483 F. 2d 1154 (1973), one judge dissenting. It held that goal organizing Local 100’s nonunion sub- legitimate contractors was a union interest and that its goal efforts toward that were exempt therefore from federal On laws. it issue, second held that state law was pre-empted Diego under Building San Garmon, Trades Council v. 359 U. 236 (1959). We granted on petition. certiorari Connell’s U. S. (1974). on the question We reverse of federal antitrust immunity and on ruling affirm the pre-emption. state law

II exemption basic sources of from organized labor’s Clayton federal antitrust laws are 6 and 20 of the Act, §§ 38 Stat. 731 and 15 U. 29 U. 52, S. C. S. C. § and the Norris-La Act, Guardia Stat. 70, 29 U. 104, 105, S. C. 113. §§ These statutes declare conspiracies unions are not combinations or labor that activities, exempt specific union trade, of and restraint secondary boycotts, and from including picketing States v. laws. United the antitrust See operation of Hutcheson, (1941). They do not ex- U. S. unions between agreements concerted action empt Pennington, 381 Mine Workers v. parties. and nonlabor how- The Court has (1965). recognized, U. S. congres- proper a accommodation between ever, that bargaining under policy favoring sional collective com- policy favoring free congressional NLRA union- petition requires in business markets that some nonstatutory a be accorded limited employer agreements from antitrust Meat Cutters v. exemption sanctions. Co., (1965). Jewel Tea 381 U. S. nonstatutory exemption

The has its source in the policy employees labor strong favoring association competition wages to eliminate over condi- working in organizing tions. Union success workers and stand- ultimately ardizing wages price competition will affect among employers, goals but of federal labor law never could be achieved if this on competition effect business were held a violation of the antitrust laws. The Court has acknowledged policy therefore requires tolerance for the lessening competition business based in wages on differences and working conditions. See Pennington, Mine Workers supra, Tea, v. at 666; Jewel supra, at 692-693 (opinion White, J.). policy Labor clearly require, does not a union have free- however, impose dom to competition direct restraints on among employ those who its members. while Thus, statutory .exemption allows accomplish unions to some restraints by acting unilaterally, g., e. Federation Musicians v. Carroll, 391 U. (1968), S. 99 the nonstatutory exemption protection offers no similar when a union and a nonlabor party agree competition business market. restrain Workers, Allen Bradley See Co. Electrical 325 U. S. (1945); Antitrust Cox, 806-811 Labor and the Preliminary Laws—A 104 U. L. Rev. Analysis, Pa. (1955); Meltzer, Bargaining, Labor Collective Unions, (1965). and the Laws, Antitrust 32 U. Chi. L. Rev. In this case Local 100 used direct on the restraints business support campaign. market its organizing agreements general Connell contrac- indiscriminately tors excluded nonunion subcontractors portion from a competitive even if their market, advantages were not from and wages derived substandard working conditions but operat- rather from more efficient ing competition methods. Curtailment of on effi- based ciency is goal policy neither a federal nor a necessary competition effect of the elimination of among Moreover, workers. competition efficiency based on is a positive value that strive to protect. laws

The multiemployer bargaining between agreement Local 100 Association, and the in though not challenged suit, is relevant in determining the effect that agreement between Local and Connell would have on the business market. The “most favored nation” clause the multiemployér agreement promised to elimi nate competition between members of the Association any other subcontractors that Local 100 might orga nize. By giving members of the Association a con tractual right to insist on terms as favorable as those given any competitor, guaranteed it that the union would no agreement give make that would an unaffiliated con competitive advantage tractor over members of the Association.1 Subcontractors the Association thus primary effect seems to have been in- (cid:127) any offering employer hibit the union from a more favorable contract. asked at trial whether When another could subcontractor any extension of Local orga- to benefit from 100’s stood the method Local 100 chose nization, but also had the competition them from outside sheltering effect that portion by market covered subcontracting agree- general ments between contractors and Local 100. portion of the restriction on subcon- market, competition subjects would eliminate on all tracting multiemployer covered on sub- agreement, even jects wages, hours, working unrelated to conditions. exacting agreements

Success in from contrac- general give power tors would also Local 100 access to control subcontracting market mechanical work. The agreements general simply pro- contractors did not any they hibit subcontracting firm; pro- nonunion hibited firm did subcontracting not have a contract with complete Local 100. The union thus had control over subcontract work offered general con- signed tractors that had these agreements. control Such could in significant result on the market adverse effects on consumers —effects unrelated legiti- to the union’s mate goals of organizing workers and work- standardizing ing conditions. For example, if the union the thought interests of its members by would served having be fewer competing subcontractors for the work, available get agreement any an terms, agent on different Local 100’s business answered: agreement says given “No. The that no one will be a more agreement. couldn’t, desired, I agent, sign

favorable if I as an an agreement the than ones existence between other the local con- tractors and the Local 100.

“Q. words, you sign I see. So that’s —in other once that contract Association, only with Mechanical Contractors’ the that sets the your agreement Union can type which enter into other correct, contractors; is that sir? mechanical 45-46. is true.” Tr. “A. That

it could sign collective-bargaining refuse to agreements with marginal Pennington, firms. Cf. Mine Workers v. supra. Or, geograph- since Local 100 has a well-defined jurisdiction, “traveling” ical it could exclude subcontrac- by tors refusing to deal with them. might Local thus be able to create a geographical for local con- enclave tractors, similar Bradley, to the closed in Allen market supra.

This record contains no evidence that the goal union’s than, was anything organizing many other as subcontrac possible.2 tors as This goal was even though a legal, successful organizing campaign ultimately would reduce competition employers unionized face from non union firms. But the methods the union are chose not immune from simply sanctions goal antitrust because the legal. Here Local 100, agreement with con several tractors, made nonunion to com ineligible subcontractors pete portion for a of the available work. This kind of direct restraint on business has market substantial anticompetitive potential, both actual effects, would not follow naturally from the elimination com petition over wages and working conditions. It contra policies venes antitrust to a degree justified not congressional labor claim therefore cannot policy, nonstatutory exemption from laws.

There can no argument be case, whatever its force that a contexts, restraint of this magnitude organizing There was no evidence that Local 100’s campaign was any agreement connected with multiemployer with members bargaining unit, only among evidence of those subcontractors was the “most favored nation” clause in the col- lective-bargaining agreement. fact, argued Connell has not theory conspiracy case on a between the union and unionized simply multiemployer agree- It relied subcontractors. has on enhancing the implicit ment as a factor restraint of trade subcontracting agreement signed. it might exemption be entitled an antitrust if it were included in a lawful collective-bargaining agreement. Cf. Pennington, Mine Workers v. S., ; 381 U. 664-665 at Tea, Jewel S., (opinion J.); 381 U. at 689-690 of White, id., 709-713, (opinion J.). at 732-733 Goldberg, of this case, Local 100 no in representing had interest Con employees. nell’s policy favoring federal collective bargaining therefore can offer no shelter for the union’s against coercive action campaign Connell or its to exclude nonunion firms from the subcontracting market.

Ill Local 100 agree contends the kind nonetheless that of ment it obtained explicitly from Connell is allowed the construction-industry proviso to that (e) policy therefore must defer to the NLRA. The majority in the Appeals Court of to decide this declined issue, holding that it subject juris was to the “exclusive diction” of the 2d, NLRB. 483 F. at 1174. This Court has held, however, may the federal courts decide questions law emerge as collateral issues suits brought independent under remedies, federal in cluding the antitrust laws.3 (e) We conclude that 8§ does type not allow this agreement. argument

Local 100’s straightforward: pro- the first viso (e) §to allows “an between a labor organization and an employer in the construction in- dustry relating the contracting or subcontracting work to be done at the site of the construction, alteration, painting, repair building, of a structure, or other Co., Meat Cutters v. Jewel Tea (1965) 381 U. S. 684-688 id., (opinion White, J.); (opinion at 710 n. 18 Goldberg, J.); Sipes, Evening cf. Vaca v. Smith (1967); 386 U. S. 176-188 Assn., (1962). News 371 U.

work.” Local 100 a labor is organization, Connell an employer in the industry, agree construction and the ment only covers work “to be done site of construc at the tion, alteration, painting repair any or struc building, of ture, or other works.” Local 100 the says, Therefore, agreement comes proviso. within Connell re sponds by arguing despite unqualified language that of the proviso, Congress only intended to sub allow contracting agreements within the context of a collective- bargaining relationship; is, Congress that did not intend permit to a union approach “stranger” a and contractor obtain binding agreement a not to deal with nonunion (e) provides: Section 8 “It practice any organization shall be an unfair labor any and employer any express agreement, to enter into or contract implied, whereby or employer agrees such ceases or refrains or using, selling, cease or handling, transporting refrain from other- or dealing any wise products any employer, of the other or to doing any cease person, business with other and contract or agreement containing entered into or an heretofore hereafter such agreement Provided, shall be to such extent unenforcible void: nothing That apply in this shall subsection an between organization employer a labor industry and an in the construction relating contracting subcontracting to the or work done to be at alteration, construction, painting, the site of repair or of a building, structure, further, or other work: Provided for the That purposes (b)[(4)(B)] of this subsection and subsection sec- ‘any ‘any employer,’ person engaged tion the terms in commerce or commerce,’ industry affecting ‘any an person’ when used in-rela- ‘any processor, tion producer, manufacturer,’ terms other or 'any ‘any employer,’ other person’ or not include shall persons jobber, contractor, in the relation manufacturer, of a or working goods premises jobber subcontractor on the or of the or performing integrated parts process manufacturer pro- of an clothing industry: apparel further, duction Provided nothing subchapter prohibit That in this shall the enforcement of any agreement foregoing exception.” is within which 29 U. S. C. (e). §158 face, proviso suggests On its subcontractors. has held, however, no such limitation. This Court (e)8 interpreted light statutory must be setting surrounding and the circumstances its enactment: rule, thing may

“It is a 'familiar be within the yet letter of the statute and within not the statute, because not within its nor within spirit, the Holy Trinity Church v. intention of its makers.’ States, United 459.” National Wood- 143 U. 457, S. NLRB, work Assn. v. 612, 386 U. 619 Mfrs. (1967). (e) part legislative

Section 8 a program designed was plug loopholes (b)(4)’s technical in 8 general prohi § bition secondary (e) Congress activities. 8§ broadly proscribed using contractual agreements achieve the economic prohibited (b) (4). coercion by § 8 Assn., National Woodwork See supra, at 634. Mfrs. The provisos exempting gar construction and ment industries were added by the Conference Committee apparent an compromise between the House which bill, prohibited cargo” all “hot agreements, and the Senate bill, which prohibited only them trucking industry.5 Although garment-industry proviso was supported by detailed explanations in both Houses,6 the construction-industry proviso was ex plained only by pattern bare references to “the of collec 5 See Rep. Cong., Sess., H. R. Conf. 86th 1st 39-40 No. (1959). id., Cong. (1959) (remarks 6 105 Kennedy); 17327 Rec. Sen. id., (remarks at Goldwater); Sens. Javits and at 15539 id., (memorandum by Reps. Thompson Udall); and at 16590 (memorandum by Kennedy Rep. Thompson). Sen. These de reproduced NLRB, Legislative bates History are in 2 of the Labor- Management Reporting 1377, 1385, 1959, pp. Disclosure Act of Hist, (1959) (hereinafter Leg. LMRDA).

tive bargaining” industry.7 seems, however, in the It adopted to have for an at partial been as a substitute NLRB Den tempt Court’s overrule this decision Council, ver Building & Construction Trades U. S. (1951). “special problems” 8 Discussion of in the (e) industry, applicable pro construction to both Trades, Building Denver attempt viso and to overrule problems single focused on nonunion picketing multiemployer building project, subcontractor on a relationship the close between contractors and subcon id., Coug. (1959) (remarks by Kennedy); 7 105 Rec. 17899 Sen. Hist, (remarks by Rep. Leg. Thompson); at 18134 of LMRDA 1432, 1721. message Congress reconunending President Eisenhower’s legislation urged secondary-boycott reform pro- amendment of the permit secondary activity circumstances, visions to certain “under against secondary employers engaged con- in work at a common struction site primary employer.” S. Doc. No. 86th (1959) added). Cong., Sess., (emphasis 1st 3 Various bills intro- Hist, Leg. duced in both 2 provisions, Houses included such see 1912-1915, LMRDA passed but neither that the bill the Senate Building passed the a Denver nor one that the House contained Trades provision. proposed The Conference Committee to include (b) (4) such an (B) amendment agreement, 8 in the Conference § along closely construction-industry with a exemption linked from (e). Cong. (1959) resolution), 105 Rec. 17333 (proposed §8 Senate Hist, Leg. 2 of LMRDA 1383. parliamentary But a obstacle killed (b) (4) (B) amendment, the 8 only (e) proviso the § sur- § Hist, Cong. vived. See 105 17728-17729, 17901-17903, Rec. 2 Leg. 1397-1398, of LMRDA 1434-1436. References to proviso the suggest may the Committee (e) have intended pro- the 8§ simply viso Carpenters preserve quo the status under v. (Sand Door), NLRB (195S), pending 357 U. S. 93 action on the Building Denver Trades problem following session. See supra, Rep. 1147, H. R. 5, 39-40; Cong. No. n. at Rec. 17900 (1959) (report Kennedy of Sen. on agreement), Conference Leg. Hist, of Although LMRDA 1433. Kennedy Senator introduced a bill (b)(4), to amend Cong., S. 86th 1st (1959), Séss. §8 it was reported never out of committee. limited the construc Congress jobsite.9 at tractors allowing single tion-industry proviso situation, to that done in relation to work subcontracting agreements only In provided latitude it jobsite. on a contrast to the afford Congress did not garment-industry proviso, (B) or (b) (4) from 8 exemption construction unions an free otherwise indicate that were to use subcontract they ing agreements organizational weapon. as broad keeping interpreted with these the Court has limitations, construction-industry proviso as designed agreements pertaining

“a measure to allow secondary to certain activities on the construction site because of community the close of interests there, secondary-objective agreements but to ban concerning jobsite non work, in which respect industry construction is no different from any other.” Assn., National Woodwork 386 U. at 638- S., Mfrs. (footnote omitted). Other courts have suggested that it serves an nar- even rower function: purpose of (e) proviso

“[T]he section was to may alleviate frictions arise when union men continuously work alongside nonunion men on the same construction site.” Drivers Local 695 NLRB, 124 U. App. D. C. 93, 2d F. (1966). See Trades, also Building Denver 341 U. S., at 692-693 J., dissenting); Essex County Vicinity (Douglas, & 9 Cong. id., See 105 (1959) (remarks Rec. 17881 Morse); Sen. id., (memorandum at Reps. Thompson Udall); at id., (memorandum by 15551-15552 Elliott); (re- Sen. at 15852 id., by Rep. Goodell); marks see at also (post-legislative 20004-20005 Hist, by Rep. remarks Kearns); 2 Leg. 1577, 1588, of LMRDA 1684, and 1861. NLRB, Carpenters

District Council 332 F. 2d (CA3 1964). Local subcontracting 100 does not that suggest its agreement policies. of these It related does employees not claim to be from protecting Connell’s hav- ing work nonunion men. The alongside agreement apparently was not mem- designed protect Local 100’s bers in that jobsites since it was not limited to regard, they on which Moreover, the subcon- working. were tracting applied restriction Local 100’s only to the work members perform would free sub- themselves and allowed contracting of all work, leaving open possi- thus a bility they that would be employed alongside nonunion subcontractors. Nor was Local 100 trying organize a nonunion project subcontractor on the it building picketed. The union admits sought it agreement solely way as a pressuring mechanical subcontractors the Dallas area to it recognize as representative employees. of their

If agreed we with Local 100 that the construction- industry proviso subcontracting agreements authorizes with “stranger” contractors, any particu not limited to jobsite, ruling give lar our would construction unions an almost weapon.10 unlimited organizational The unions contends, unsoundly think, Local 100 we has NLRB Angeles Building It cites Los Con- & decided this issue its favor. (B struction & J Co.), Trades Council Investment L. R. B. N. (1974), No. 87 L. R. M. and a R. memorandum from explaining prac- General Counsel his decision not to file unfair labor (Hagler Local charges case, Plumbers Construc- tice in a similar Co.), In B (May 1, 1974). tion & J Investment No. 16-CC-447 comment, approved, without an the Board administrative (e) proviso judge’s law conclusion that authorized a subcon- general tracting agreement the Council and a between contractor employees particular in the used none his own who construction may question prehire have been project. The con- any general be free to contractor to bring would enlist subcontractors, on as pressure long economic nonunion only recited that it covered work to be as the jobsite proviso’s somewhere. The performed on some only prohibit jobsite restriction then would serve to relating deliver agreements to subcontractors that their complete jobsite. work to the highly improbable

It is intended such Congress a major result. One of the aims of Act was the 1959 “top-down” limit in which organizing campaigns, unions used economic force weapons recognition from an employer regardless employees.11 the wishes of his accomplished Congress goal by enacting 8 (b)(7), § primary which restricts recognitional by picketing, prohibits further tightening (b)(4)(B), §8 which secondary use of most tactics cam organizational fully Construction unions paigns. are covered these only special sections. The consideration them in given organizational campaigns is 8 (f), “pre § which allows agreements hire” only industry, construction but safeguards under careful preserving rights workers’ representation. decline union legislative history The ac companying (f) § 8 also suggests that Congress may not tract under (f), argued and it is not clear that the contractor it was invalid for lack collective-bargaining of a relationship. Hagler General Construction plainly Counsel’s memorandum in argument addressed a subcontracting different clause —that pre-existing only should be allowed if collective-bargaining there is a relationship general general contractor or if the contractor employees perform has who kind of work covered agreement. Cong. 11 105 (1959) (remarks Rec. 6428-6429 Goldwater); Sen.

id., (remarks at 6648-6649 id., McClellan); of Sen. at 6664-6665 (remarks id., Goldwater); of Sen. (memorandum at 14348 Rep. Hist, Griffin); Leg. of LMRDA 1175-1176, 1191-1192, 1523. used to could be picketing

have intended that strikes or prehire unwilling employers.12 extract from agreements unions pressure These careful limits on the economic would campaigns aid of their may organizational use in (e) were proviso § be if the 8 seriously undermined to subcontracting agree construed to allow unions to seek ments, any general at from contractor vulnerable large, picketing. Congress to Absent clear indication that intended such a in its restric glaring loophole to leave “top-down” unwilling tions on organizing, we are read the as construction-industry proviso broadly as 100 suggests.13 Local we its authorization Instead, think only extends of collective- agreements the context and, bargaining relationships light congressional Building to the Denver Trades problem, references pos sibly jobsites on relationships particular common-situs as well.14

Finally, Local 100 contends that even if the subcon- tracting agreement is not construction- sanctioned Rep. supra,

12 H. 1147, 5, 42; Cong. R. No. 10104 n. at 105 Rec. (1959) (memorandum (remarks Goldwater); id., of Sen. at 18128 Hist, by Rep. Barden); Leg. 2 of LMRDA 1715. NLRB has taken Operating Engineers 51$, this 142 view. Local N. L. R. B. (1963), enforced, (CA3), 1132 331 F. 2d 99 cert. denied, (1964). 379 U. S. 889 13 above, As supra, noted 628-630, garment-industry at proviso reflects different proviso considerations. The text of the and the congressional treatment reports suggest Congress debates and that garment intended to using authorize workers’ unions to continue subcontracting agreements organizational as an weapon. See Daniel son Board, v. Joint (CA2 494 1974) J.). F. 2d 1230 (Friendly, 14 argued Connell also has subcontracting agreement was subject to construction-industry sanctions because proviso only authorizes voluntary agreements. The foundation of argument is a (b) (4) (B) contention picketing 8 forbids § to secure an cargo” agreement otherwise lawful “hot in the con- industry. struction Because we hold that in this case (e) is outside proviso, unnecessary it is § to consider this alternative contention.

industry proviso illegal and is therefore under it (e), § cannot be liability the basis for antitrust because the remedies in argument the NLRA are exclusive. This grounded in legislative history of the 1947 Taft Hartley Congress rejected amendments. attempts regulate secondary by repealing activities the antitrust exemptions Clayton in the Acts, Norris-LaGuardia special created remedies under the law ins tead.15 It secondary made prac activities unfair labor tices (b)(4), § under drafted'special provisions for preliminary injunctions at the suit of the NLRB and recovery damages actual in the district courts. (l) NLRA, § 10 Stat. as added, Stat. (l), amended, as U. S. and § C. 303 of the Management Labor Act, Relations 61 158, Stat. as amended, 29 § U. S. C. 187. But significance whatever legislative this choice has for antitrust suits based on secondary prohibited by those activities it 18(b)(4), question has no Congress relevance to the whether preclude meant to antitrust suits based on the “hot cargo” agreements that it in outlawed 1959. There is legislative history no in Congress suggesting the 1959 (e) that labor-law remedies for 8 violations in § were Congress thought tended to be that exclusive, or allow ing present antitrust remedies cases like the one would be with the remedial scheme of the inconsistent NLRA.16 15 (House Cong., Rep. 80th 1st Sess. Man- H. R. Conf. No. See Cong. 4757, 4770,

agers’ statement), (1947); Rec. 4834- 65-67 93 (1947) (debates proposal antitrust sanc- Sen. Ball’s for 4874 over compromise proposal damages, for actual which tions and Sen. Taft’s NLRA). became 303 of the § 16 of Mr. Justice Stewart dissenting opinion argues The that remedy provides (e), thereby 303 the exclusive for of violations 8 § § precluding proposition recourse to remedies. For that antitrust dissenting opinion upon legisla- relies “considerable evidence Post, view, tive materials.” at 650. our these materials are is out- agreement, which therefore hold that

We relationship collective-bargaining a side context of which but particular jobsite, not to restricted a only work subcontract nonetheless Connell to obligates may be the firms that a with Local have contract potential it a basis a federal suit because has antitrust market the business restraining competition in ways that naturally would not follow from elimination competition wages working over conditions.

IV Although with Con we that the hold union’s subject not fol laws, nell to the federal it does antitrust low that may apply state law as well. antitrust has Court held federal law repeatedly pre-empts state or with policy remedies interfere federal labor provisions specific g., NLRA. E. Motor Coach the.

Employees Lockridge, v. Teamsters (1971); U. S. Morton, Oliver, (1964); U. Teamsters v. S. U. (1959).17 The use of state antitrust law unpersuasive. place, Congress In the first did not amend 303 ex- § pressly provide remedy (e). See for violations of 8 Labor- Management (d), Reporting Act Disclosure §§ (e), reject proposals 73 Stat. 544-545. The House in 1959 did by Representatives repeal Hiestand, Alger, and Hoffman labor’s immunity. Post, however, proposals, Those at 650-654. Hiestand-Alger were much broader than the issue in this case. The proposal repealed immunity any would have antitrust action by organizations. in concert two or more The Hoffman labor proposal immunity apparently repeal labor’s intended antitrust entirely. That Congress rejected extravagant proposals the these hardly proof that it furnishes intended extend labor’s antitrust immunity agreements to include parties, with nonlabor or that thought it liability existing under antitrust statutes would be inconsistent with by the NLRA. The bill introduced Senator Mc- years provides Clellan two support proposi- later even less for that Congress, Like tion. most bills introduced it never reached a vote. 17In most pre-empted cases a decision law that state is leaves parties only law, with recourse to the federal labor as enforced regulate organization of must union activities in aid also be of pre-empted because it creates a substantial risk con- flict with policies central to federal labor law. between labor area, this accommodation federal Congress

and Court policy antitrust delicate. and is carefully have tailored to avoid the antitrust statutes policy favoring employee conflict with the labor lawful or delineating not from ganization, only by exemptions anti coverage scope trust but also the anti adjusting the of trust Apex Hosiery v. remedies themselves. See Co. Leader, (1940). gen 310 U. S. 469 State antitrust laws erally subjected have not been process to this of accom they modation. If of goals all, they take account at may represent a totally different balance between labor policies.18 Permitting and antitrust state antitrust law to operate poli in this field could frustrate basic federal favoring cies employee organization and allowing elimina wage tion of competition among earners, interfere system Congress regulat the detailed has created for ing organizational techniques. Employees See Motor Lockridge, Coach the NLRB. v. U. S. Diego Building Garmon, (1971); San Trades Council v. (1959). S. 236 U. But this one, cases like there where is an

independent remedy NLRA, federal consistent with the parties may have a federal remedies. Cf. Vaca v. choice Sipes, Evening Assn., Smith (1967); U. S. 176-188 News (1962). 371 U. S. 195 good Texas example. law is a Ann., Texas Rev. Civ. Arts. Stat. (1971), and 5153 declare that it is lawful for workers to associate persons unions and to reject induce other accept or employment. however, Article 5154, referring preceding to the articles, provides: “Nothing herein be repeal, shall construed to affect or any dimmish force and effect existing statute now on subject trusts, conspiracies against trade, pools monopolies.” prohibit, The Texas among specified agree- statutes ments, trusts, monopolies, combination two more persons pursuit “the restrict free aof lawful business.” Tex. Bus. & (1968). Comm. Code 15.02-15.04 §§ central federal is employee organization

Because procedures organizational regulation policy labor use of admit the federal law does not comprehensive, is is regulate activity law to union antitrust state course, Of closely organizational goals. related to parties may agreements between unions and nonlabor Teamsters subject be yet to state antitrust laws. See Oliver, is the supra, at 295-297. The factor governing with risk conflict with the NLRA or federal policy.

Y Appeals Neither the District nor the Court of Court decided whether the agreement between Local Connell, subject if laws, the antitrust would consti an agreement tute within mean that restrains trade ing the Sherman Act. issue briefed and was not argued fully in this Court. we remand for Accordingly, consideration agreement whether violated Sher man Act.19 in

Reversed part, in and remanded. part, affirmed 19In seeking addition to declaratory judgment agree- a ment sought Local laws, violated the Connell permanent injunction against picketing further to coerce execution litigation. of the contract temporary Connell re- obtained a straining against order picketing January 21, 1971, on and there- after protest executed the contract —under Local on —with March 1971. So far as reveals, the record case has there been no picketing further ai Connell’s Accord- construction sites. ingly, there is no occasion us to consider whether Norris- injunction agree- LaGuardia Act forbids specific such an where the sought ment illegal, whether, the union is or to determine within meaning Act, of the Norris-LaGuardia was dis- there a “labor pute” parties. between If these the Norris-LaGuardia Act were applicable picketing, injunctive to this would relief not be available under the antitrust laws. Hutcheson, See United States v. 312 U. S. (1941). question If the held on remand to be Mr. Justice Douglas, dissenting. I I join opinion

While of Mr. Justice Stewart, write to emphasize is, what the determinative me, feature of the Throughout case. Connell litigation, has only maintained Local sign- 100 coerced it into ing the subcontracting agreement. complaint so With I difficulty have no in drawn, concluding that the union’s solely by is regulated ques- conduct the labor laws. The tion of immunity would far be how- different, ever, if were conspired it Local 100 had alleged that mechanical force subcontractors to nonunion subcontrac- tors from the market into entering exclusionary agree- general ments with contractors like An Connell. ar- rangement of that character was in condemned Allen Co. v. Electrical Bradley Workers, (1945), U. S. which held that did Congress not intend “to immunize labor unions who aid and abet manufacturers and traders in id., violating Sherman Act,” at 810. Were such a conspiracy alleged, multiemployer bargaining agree- ment between Local 100 and the mechanical subcontrac- tors unquestionably would be relevant. Work- See Mine ers v. Pennington, (1965) 381 U. S. (concurring Meat opinion); Co., Cutters v. Jewel Tea 381 U. S. 737 (1965) (dissenting opinion). But since Connell has never alleged attempted or to show conspiracy be- tween Local 100 and I the subcontractors, agree that Connell’s remedies, if any, provided are exclusively by the labor laws. Doug-

Mr. Justice Stewart, with whom Mr. Justice and Mr. Justice Marshall las, Mr. Brennan, Justice join, dissenting. part organize

As of its effort mechanical contractors respondent the Dallas area, Local Union No. 100 laws, we anticipate invalid under federal antitrust cannot that Local picketing illegal agreement. obtain or will resume enforce an engaged peaceful picketing petitioner to induce the Connell general Construction Co., contractor building and construction industry, agree subcon- plumbing tract work and mechanical at the construction only site to firms signed that had a collective-bargaining agreement with Local 100. None of em- Connell’s own ployees were members of Local and the subcontract- ing agreement express contained the union’s disavowal of any intent to organize represent picket- them. The ing at Connell’s secondary construction site was therefore subject activity, to detailed and comprehensive regula- tion pursuant (b) of (4) § 8 the Labor National Rela- added, tions as Act, 141, 61 Stat. 29 U. 158§ S. C. (b)(4), and of §303 the Labor Management Relations Act, 61 158, Stat. as 29 U. C. 187. amended, § S. Simi- larly, the subcontracting under which Connell agreed to cease doing business with nonunion mechanical contractors provisions is governed (e) the § the National Labor Relations Act, (e). 29 U. S. C. 158 The relevant legislative history unmistakably demon- strates in secondary regulating activity “hot cargo” agreements in 1947 and Congress selected 1959, with great care proscribed the sanctions to be imposed if union activity occur. should so doing, Congress rejected private efforts to give parties injured by union activity such as that in engaged Local right 100 the to seek relief under federal antitrust laws. Accordingly, I judgment would affirm the before us.

I a period For years, of 15 from passage of the Norris 70, Act, LaGuardia Stat. until enactment secondary Before 1932 this Court had held that strikes and boycotts exempt coverage were not the from of the antitrust laws. Duplex Printing g., Deering, E. Press Co. v. 443; 254 U. S. Bedford the Labor Management (the Taft-Hartley Relations Act Act), 136, 61 Stat. union pressure economic against directed a neutral, secondary employer was not subject to sanctions under either federal labor law or at least law, proof absence of coercing union was secondary employer in further- conspiracy ance of a group. a nonlabor See United States v. Hutcheson, 312 S. Allen 219; Bradley U. Co. v. Workers, Electrical 325 U. 797. “Congress abolished, S. purposes of labor immunity, the distinction between primary activity between the disputants’ ‘immediate secondary activity in which employer disputants the members of the union do ‘in proximate not stand relation employer and employee National ....’” Woodwork NLRB, Assn. v. 386 U. 623. Mfrs.

In Hunt Crumboch, 325 U. S. for example, the Court found that union conduct in forcing a freight car- rier out of protected business activity beyond was reach of the federal antitrust laws even though it involved secondary pressure that culminated in the union’s com- pelling carrier’s principal patron to break its contract with the carrier and to discharge the carrier from further service. “That which Congress has recognized as law- ful,” the Court noted, “this Court has no constitutional power to declare unlawful, arguing Congress has too much power accorded Id., to labor organizations.” at 825 n. 1.

Congressional concern over labor of abuses the broad immunity granted by the Norris-LaGuardia Act was one of the considerations that resulted in passage of the Taft- Journeymen Cut Co. Stone Stone v. Assn., Cutters’ Du- 274 U. S. 37. plex progeny were by Congress its passage overruled Act, Wagon Norris-LaGuardia See Milk Drivers’ 70. Stat. Valley Union v. Lake Farm Products, Inc., 91, 100-103; 311 U. S. Hutcheson, United States U. S. 229-231, 235-237. things, pro other among in Hartley 1947, which, Act National See secondary activity. union specified hibited NLRB, at 623. supra, Woodwork Assn. v. Mfrs. forbid was to statutory provision central thrust or to to against union induce strike employees “a to ob when an employer their goods to handle refuse doing to ject person force him or cease to another Union Carpenters’ party.” business with some third “specific v. NLRB, condemning 98.2 In U. S. 93, ibid., union how specific objectives,” conduct directed to unions ever, deliberately subject not Congress chose prohibited engaging secondary activity to the sanctions of the antitrust laws. (3) Hartley 12 (a)

Section H. R. 80th bill, Cong., initially passed by House, 1st as defined Sess., “unlawful concerted an “illegal boy- activities” to include History cott.” NLRB Legislative of the Labor Man- agement Act, p. (hereinafter Relations Leg. Hist, of LMRA). (c) Section 12 provided that Norris-LaGuardia Act “application should no have any or action in a proceeding court of the United States any involving activity defined in this as unlaw- section (b) (4) The Act added Act, to the National Labor Relations making it an unfair practice organization labor for a labor or its agents engage “to in, or employees to induce encourage or any employer engage in, a strike aor concerted refusal course employment of their use, manufacture, process, transport, or otherwise any handle or work on goods, articles, materials, or commodities or to perform any services, object where an thereof is: (A) forcing requiring or any employer self-employed person or join any or employer organization any employer or other person to using, cease selling, handling, transporting, or otherwise dealing in products any producer, processor, or manu- facturer, or to doing cease business person with . . . ." 61 Stat. 141. Hist, 1 Leg. ful.” of LMRA 206-207. The Committee on Education and its explained report Labor in on Hartley bill:

“Illegal boycotts many take . . forms. . Some- they times direct trade, designed are restraints of compel people they in against engaged whom are place their business with some other those than they are dealing at 12], the time .... Under [§ practices these name, are called correct their ‘unlawful provided concerted It is activities.’ any person injured his person, or busi- property, ness activity affecting an unlawful concerted may commerce person persons responsible sue the for the injury in district having jurisdic- court tion of the parties and bill damages. recover The inapplicable in makes such suits Norris-LaGuar- Act, dia which protected parties heretofore has industrial strife from consequences of their law- lessness, no how disputes matter violent their became. Persons engage who unlawful concerted activities subject losing are rights their privileges under Rep. the act.” H. R. No. Cong., Sess., 80th 1st Hist, 144, Leg. of LMRA 315, 335. Senate, however, adopt refused to the House’s immunity secondary removal for prohibited activity, choosing instead to make the remedies available under federal labor law exclusive. The Senate Commit- tee on Labor and Public approved Welfare 80th 1st Cong., Sess., secondary which provided proscribed conduct would be unfair practice an be could enjoined on application of Labor National Relations No private remedy Board. injured employer an was approved by authorized the bill the Committee. See S. Rep. 105, 80th Cong., Leg. No. 1st Sess., 7-8, 22, Hist, 413-414, of LMRA 428.

Four members of although the Senate Committee, by the

supporting provisions reported the of S. as number of the Committee, provisions felt that a stronger. Rep. bill could be at 105, supra, S. No. Hist, minority Leg. particular, LMRA 456. proposed: Senators

“An bill a section in the reinserting amendment strikes making secondary boycotts jurisdictional the courts unlawful and for direct suits providing by any injured party. . . . injured

“The proposes amendment [the party] damages file a be entitled to suit injunction that suit temporary obtain a while being heard. . .. pro-

“The removes amendment, furthermore, agree- Clayton monopoly tection of the Act from customers, ments fix allocate restrict prices, impose or distribution, competition, or production, or on or sale, restrictions conditions the purchase, use of While the equipment. machines, material, existence of union should be a combination not why we unions trade, restraint see no reason subject should to the same not be this field Rep. restriction as competing employers.” are Hist, of LMRA supra, 54-55, Leg. No. at 460-461. Ball, minority the four on

Senator one of Senators Committee, Labor and Public Welfare did in fact offer an “designed amendment on floor the Senate that was interpretation correct the of the Norris-LaGuardia and Clayton Hutchin- by Supreme acts made Court in the son and a number of other cases case, brought [sic] Attorney Arnold, former Thurman Assistant General attempted up monopolistic practices when he to break on acting own, sometimes on their unions, of labor part Cong. Rec. conspiracy employers.” sometimes in Hist, of LMRA 1354.3 4838, Leg.

Although stating personally agreed that he with the changes proposed Ball, argued Senator Senator Taft amendment, explaining for defeat of Ball that resist- providing private injunctive remedy ance to a in cases secondary of boycotts so strong attempt was that an to eliminate the exemption labor from the antitrust laws any would lead to the defeat of effort to for provide a private damages remedy injured for parties. Taft Senator proposed as a private substitute that parties given be only right to sue for actual damages. Cong. 93 Rec. Hist, 2 4843-4844, Leg. of LMRA 1365. Ball amendment was thereafter defeated, Cong. 4847, 93 Rec. Hist, 2 Leg. of LMRA in- 1369-1370, and Taft Senator his proposal troduced people “to restore to who lose something boycotts jurisdictional because strikes money they which 4858, have lost.” 93 Cong. Rec. Hist, 2 Leg. of LMRA 1370-1371. response to Senator proposal Morse’s claim that the impose virtually

would liability unions, unlimited on Senator Taft made plain that he was not advocating the use of antitrust against prohibited secondary sanctions activity. “Under the Sherman Act the question same boycott damage subject is to a suit for dam- [treble] provided The amendment part introduced Senator Ball Clayton Act and the appli- Norris-LaGuardia Act “shall not be respect (a) [defining prohibited cable of violations of subsection secondary conduct], respect any contract, combination, or in or conspiracy, commerce, organization restraint of which a party, is a if purposes contract, one of the combination, of such or conspiracy prices, fix customers, allocate production, restrict distribution, competition, impose or or upon restrictions or conditions purchase, sale or use material, machines, equipment.” Cong. (1947). Rec. 4757 simply provide In this we

ages attorneys’ fees. case Rec. damages.” Cong. for the amount of the actual Team 1398; LMRA see 4872-4873, Hist. of Leg. Morton, sters v. 260 n. 16. Taft’s 252, 377 U. Senator proposal remedy under federal private damages labor law Rec. adopted Cong. was the Senate. of LMRA 1399-1400. Leg. Hist. 4874-4875, In Conference, the House members to eliminate agreed provisions Ball Hartley bill like the which, amendment, provided that Act Norris-LaGuardia should application private have no suits for unlawful secondary activity. Rep. 80th See H. Conf. No. R. 58-59, (House 1st Cong., Managers’ statement), Sess. Hist, 1 Leg. only “clarifying of LMRA 562-563. With changes,” Leg. H. Rep. 510, supra, Conf. No. at R. Hist, of LMRA Conferees and House-Senate then both union Congress agreed regulate Houses of activity secondary activity by making specified an unfair practice (b) (4) labor Labor under 8 of the National § authorizing injunctions Relations the Board to seek Act, provid such against activity, (l), § 29 U. S. C. 160 in ing recovery damages by private for of actual a suit a which party compromise proposal, under Senator Taft’s Act, Relations Management became 303 of the Labor § in not all Congress prohibit 29 U. 1947 did § S. C. 187.4 Management of Section of Labor Relations Act 158-159, provided: Stat. “(a) unlawful, purposes only, It shall be for this section industry commerce, any orga- activity affecting in an for labor or in, encourage employees of engage nization to or to induce or any in, employer engage to or a concerted refusal in the strike use, manufacture, process, transport, employment course of their to any goods, articles, materials, or otherwise or work on or handle any object perform services, commodities or to where an thereof is— "(1) any forcing requiring employer self-employed person or or to join any any employer organization employer or labor or or other person using, selling, transporting, handling, to or cease otherwise v. activity by unions, Carpenters see secondary did which it NLRB, 93; practices and those 357 U. S. seeking relief from only by to were be remedied outlaw newly created, exclusive by pursuing the Board or by Teamsters remedy provided § 303. damages federal Morton, supra. II ante, in Court’s Contrary opinion, assertion to the make decision to congressional deliberate at secondary remedy unlawful private 303 the exclusive § of Local 100’s question relevant to the activity clearly is The Court is liability in the case before us. (e)’s prohibition in correct, course, noting § added the Act until was not cargo” agreements “hot 303 was not then amended to cover § and that part of the (e) standing violations alone. But as § loopholes” close “technical designed 1959 amendments amended perceived Taft-Hartley Congress in the Act, (b) (4) practice to make it an unfair labor for a labor § organization employer, to threaten or coerce a neutral directly employees, object or his where an through either secondary pressure employer force the to enter prohibited (e).5 an At the same into products any producer, processor, dealing other or manu- any facturer, doing person; or cease business “(b) property injured Whoever shall be his business any (a) may reason sue therefor violation of subsection o[f] subject district court of the United to the limitations States provisions of in con- respect 301 hereof without to the amount section troversy, any jurisdiction having parties, or in other court by damages shall recover him sustained and the cost of the suit.” (b) (4) Act, Section of the National Labor Relations as amended by Labor-Management Reporting 19S9, Act of and Disclosure

time, expanded Congress scope of the § 303 damages remedy to allow recovery of the actual damáges sus tained as a of result a union’s engaging in secondary activ ity to force an employer to sign an agreement in violation of (e).6 8§ In short, Congress provided has an employer like Connell awith fully private effective remedy damages for the allegedly unlawful union conduct involved in this case.

The essence of Connell’s complaint is that it was coerced by Local 100’s picketing into “conspiring” with the union by signing an agreement that limited its ability 519, 73 Stat. 542-543, provides now part in that it shall be an unfair practice labor for organization a labor or agents: its “ (4) (i) engage to in, or to encourage induce any or individual employed any by person engaged in commerce or in an industry affecting commerce engage to in, a strike or a refusal in the course employment his use, manufacture, process, transport, or other- wise handle or any work on goods, articles, materials, or commodi- ties perform or to any services; (ii) or threaten, coerce, or restrain any person engaged in commerce or in an industry affecting com- merce, in where either object case an thereof is— “(A) forcing or requiring any employer or self-employed person join any labor or employer organization or to any enter into prohibited which is (e) subsection of this section ....” 29 U. S. C. (b)(4). §158 303, Section as amended the Labor-Management Reporting Act Disclosure Stat. provides: now “(a) It shall be unlawful, for purpose only, section industry an activity affecting commerce, any orga- labor nization to engage any activity or conduct defined as an unfair practice (b) (4) section 158 of this title. “(b) Whoever injured shall be in his business or property by any reason o[f] violation (a) of subsection of this section may sue any therefor in district court of the subject United States to the limi- tations and provisions of section 185 of this title respect without the amount in controversy, or in having jurisdiction court parties, and shall recover damages by him sustained and the cost of the suit.” 29 U. C. 187. 648 competitive subcontract mechanical work on a

to basis.7 today Court the If, holds, subcontracting agree as the construction-industry proviso ment is not within the to picketing § 8 then Local 100’s to induce Connell to (e), (b) (4) sign agreement § constituted a 8 unfair labor practice, and was also unlawful 303 (a), § under therefore (a).8 29 C. Connell has the Accordingly, § U. S. 187 a right to sue Local 100 for sustained as result damages 7Indeed, original complaint was filed before Connell’s state-court ante, signed any agreement Connell had with Local 100. See at 620. point apparent primary At that it was reason for the law- request injunction suit stop was Connell’s for an to the union’s picketing. 8 If, contrarj- ante, 626-633, conclusion, to Court’s see at Con- gress proviso (e), intended what it 8 then the sub- said to § contracting agreement and, valid the view of the Board under question, 100’s Appeals those Courts of Local that have considered g., e. picketing See, lawful. to obtain the would also be Orange NLRB, Belt District Council Painters App. 117 S. v. U. Laborers 233, v. Construction 236, 537; 534, D. C. 328 2d F. NLRB, Bldg. Trades Northeastern Indiana (CA9); 323 F. 2d 422 Council, grounds, L. R. N. B. enforcement denied on other App. U. therefore S. D. C. 352 F. 2d 696. Connell would remedy have neither under 303 nor one with the Board. § specifically necessarily It would seem follow conduct to by Congress in Labor Act could authorized the National Relations liability, by not itself be basis federal antitrust unless the for judiciary frustrated con- Court intends to return to the era when the design determining public policy gressional for itself "what Printing Duplex Press struggle regard the industrial demands.” Deering, Co. (Brandéis, J., dissenting). See v. 254 U. S. Hutcheson, my view, United however, 219. States 312 U. S. unlawful, may even if 100’s conduct was Connell not seek to Local Accordingly, laws. I find it of the antitrust invoke the sanctions subcontracting agree- unnecessary whether the decide this case and Local is within the ambit of into Connell ment entered (e), is, it construction-industry proviso and if whether it peaceful picketing to induce permissible Local to utilize was agreement. sign the Connell to

of Local 100’s unlawful secondary activity pursuant 303 (b), 29 U. (b). §C. Although i “limited to Morton, actual, compensatory Teamsters v. damages,” S., U. at 260, Connell would be entitled under § 303 to recover all damages to its business that re sulted from the union’s coercive conduct, including any provable damage by caused Connell’s inability to sub contract mechanical work to nonunion firms. Similarly, any nonunion mechanical contractor who believes his business been by has harmed Local 100’s having coerced Connell into signing the agreement subcontracting is entitled to sue the union for compensatory for damages; § 303 broadly grants its “[wjhoever action damages shall in injured be his business or by property” reason a labor organization’s in engaging a (b)(4) §8 unfair labor practice.9 9If Connell and Local 100 had purely entered a voluntary into cargo” agreement

“hot in (e), injured violation of an §8 nonunion mechanical subcontractor would have no remedy 303§ because the union would engaged any not have (b) in (4) practice. unfair labor § The subcontractor, however, would still be able to seek the full range of Board remedies (e) available for a 8 practice. unfair labor § Moreover, if truly agreed Connell had subcontracting to limit its any without coercion part whatsoever on the Local might affected subcontractor well have a valid antitrust claim on ground that Local 100 and engaged Connell were type in the conspiracy parties aimed at third with which this Court in dealt Allen Bradley Co. v. Workers, Electrical very U. 797. At least, by an injured antitrust suit an subcontractor under circum- Congress stances in which provide had failed any private form of remedy damage resulting illegal from cargo” agreement an “hot present very would question different from the one before us—a question necessary which it is not now to answer. Cf. Meat Cutters Co., Jewel Tea 381 U. S. (opinion n. 9 J.). of Goldberg, hand, On the signatory purely of a voluntary agreement (e) fully that violates protected any from damage might that illegal cargo” result from the “hot ability his simply to ignore provision the contract §8(e). violates If the union attempt should cargo” enforce the illicit “hot through clause Moreover, there is considerable evidence the legis- materials indicating lative in expanding the scope of §303 to remedy include a for secondary pressure designed an employer force to sign illegal an “hot cargo” clause restricting the remedies for viola- (e) tion of 8§ itself to those available from the Board, Congress 1959 made the same deliberate choice to exclude antitrust remedies as was made Congress.

While the House was considering reform legisla- tion in the summer of 1959, specific proposals were made to apply the antitrust laws to labor unions. Representa- tive Hiestand of California introduced a bill which many “would solve problems attending unbridled power union as it exists operates country. My proposal is in the nature of antitrust legislation, applied to labor unions.” 105 Cong. 12135,2 Rec. NLRB Legislative History of the Labor-Management Reporting and Disclosure Act of p. (hereinafter 1507 1959, Leg. Hist, of LMRDA). Representative Alger of Texas joined in cosponsoring the legislation, stating that “[ujnion monopoly power” manifests itself in “restrictive practices trade such price as fixing, restrictions on use of new processes and technological improvements, exclusion of products for the market, and so forth ....

This bill deals directly with aspect] of [this union monopoly power.” Hist, 105 Cong. Rec. 12136, Leg. of LMRDA 1507. Representative Alger added the following expla- nation of the bill:

“Under the language of H. R. attempt form coercion, employer may bring then damages suit § may file practice an unfair charge with the Board. See 29 (b) (4) (B). U. S. C. (e) provides § Since any pro- hibited is “unenforcible void,” any union effort to legal processes invoke compel to the neutral employer comply to purely voluntary agreement his obviously would unavailing. be

by a union to induce an employer or a group employers comply with a union demand which would result in restrictive practices trade would be unlawful, and employer an faced with such a demand could seek legal remedies to restrain the union from enforcing its demand. The consequent denial unions of the right fix prices or impose other arti- ficial market limitations would not in any way inter- fere with normal and legitimate union functions or with their proper collective bargaining powers. They merely would placed be on an equal footing with all other groups in society as was case during fifty years prior to the Hutcheson decision.” 105 Hist, Cong. Rec. 12137, 2 Leg. of LMRDA 1508. The 8400, bill, Landrum-Griffin H. 86th R. Cong., 1st Sess., which, as amended, was enacted as the Labor-Man agement Reporting and Disclosure Act of 1959,10by con trast, clearly provided that the new secondary-boycott legislative proceedings leading passage to the of the Labor- Management Reporting and (the Disclosure Act of 1959 Landrum- Act), Griffin began 519, Stat. January when Senator John .1959 Kennedy introduced Cong., 86th S. 1st Sess. March 1959 Kennedy Senator introduced S. incorporating 46 amendments S. 505 made the Committee on Labor and Public Welfare. with various amendments, additional approved was 25, Senate April on 1959, and sent House, to the where it was re- ferred to the Committee on July 30, Education and On Labor. 1959, the House favorably Committee reported H. R. 86th Cong., 1st Sess. One week earlier H. R. 8400 and H. R. identi- bills, cal were by introduced in the Representatives House Landrum Griffin, and respectively. The August voted 13, 1959, House on substitute the text of R. 8400 H. for the text of the House Com- bill, mittee and the Landrum-Griffin bill by was inserted then House in S. 1555 in provisions. lieu of its The Conference made several substantive changes the Landrum-Griffin bill, which was passed by then both House approved by Senate and Hist, President. generally See Leg. vii-xi. LMRDA cargo” and “hot provisions solely were to be enforced through the Board by use 303 damages Hist, remedy. See 105 Cong. Rec. 14347-14348, Leg. of LMRDA 1522-1523. Recognizing important this dif- Representative ference, Alger proposed to amend the Landrum-Griffin bill as an adding, title, additional provisions the antitrust of H. R. 8003. Cong. Rec. Hist, 15532-15533, Leg. of LMRDA Repre- 1569. Alger sentative again once stated that proposed his amendment would make it unlawful for an individual local union to any liter into arrangement “[e] —volun- tary or coerced—with groups employer, employ- ers, or other unions which product cause boycotts, price fixing, or other types of practices.” restrictive trade Hist, Cong. Rec. 15533, Leg. of LMRDA 1569. Representative responded Griffin Representative Al- ger’s proposed amendment observing: serves point

“[It] out that the substitute [the Landrum-Griffin is a minimum bill. It might bill] point be well at this provisions to mention some are not in it.

“There is no provision antitrust law in this bill. “This truly a minimum bill responsible that a Congress I pass. should I speak believe for gentleman from Georgia as well as Landrum], [Mr. myself when I say if amendments are offered on the floor to add provisions or others that have been mentioned, I, one, oppose will them. gentleman The Georgia from I have tried to delicately balance provisions which we believe should be in a bill at this time and which majority body could support.” Cong. Rec. Hist, 2 Leg. of LMRDA 1571-1572. Alger amendment rejected, was as were additional

653 to the anti- union activities subject proscribed efforts to Cong. Rec. g,, 105 See, trust laws and their sanctions. e. Hist, of- (amendment 2 LMRDA 1685 15853, Leg. of the adopted by Hoffman). fered The House then Rep. go Landrum-Griffin “does not protests bill over that it more that teeth, far more enough, it needs legislation going teeth are to come the form of laws.” bring labor union under the antitrust activities Hist, of LMRDA 1690 Cong. Leg. Rec. (remarks Cong. of Rec. 15859- Rep. Alger); see Hist, (adoption 1691-1692 Leg. LMRDA substituting the Landrum R. 8342, amendment to H. in lieu of 8400 as the text thereof the text of H. R. amended).

The made some substantive House-Senate Conferees changes (b) (4), language of the amendments to 8§ and also garment-industry added the construction- and provisos to (e). generally Cox, Landrum § See Griffin Act, Amendments Relations National Labor 44 Minn. L. Rev. But no in the change 257. was made nature of the sanctions authorized for of either violations An section bill: House-passed Landrum-Griffin injured party could either seek relief from the Board or bring suit damages under unions that against secondary-boycott violate the prohibitions. revised No provisions were for exposing proscribed made union sec ondary activity cargo” or “hot to antitrust agreements liability. Rep. See H. Conf. 86th 1st Cong., No. R. Hist, Sess., Leg. of LMRDA 934.11 11Representative Hiestand, during report House debate on Committee, adoption Conference recommended of the bill as amended complimented Representatives the Conference through Landrum guiding and Griffin for their efforts in the bill Congress. legis- expressing But concern over fact secondary activity lation did not restore antitrust sanctions for union and other anticompetitive trade, restraints he warned: “[W]e of the Landrum Indeed, years two after enactment hear Act, McClellan, whose committee Griffin Senator by power had ings into abuses caused concentrated labor the 1959 major generating support role in played a Senators, with five other legislation, together reform labor illegal provide a bill to antitrust sanctions for introduced industry, in cargo” agreements transportation “hot agreements already ex despite the fact such were that by pressly prohibited (e).12 As it had in 1947 and however, Congress rejected in 1961 this effort subject illegal secondary union conduct to the sanctions of the antitrust laws. history legislative 1947 and 1959 sum, clearly

amendments and additions to national labor law Congress demonstrates did not intend to restore boycott for secondary activity sanctions such as that 100 in engaged Local but rather case, today knowledge passage should act with full of the Landrum- every problem. bill will not problem, Griffin solve The heart of the very heart, power is the sheer the hands of labor union leaders respect due their antimonopoly above-the-law status to our Hist, Cong. 18132; Leg. laws.” 105 Rec. of LMRDA 1719. (b) (2) bill, Section of Senator McClellan’s Cong., 87th Sess.,provided 1st that the part: Sherman Act be read in amended to “Notwithstanding any provision law, every contract, other agreement, understanding, express implied, or any or between organization any employer engaged transportation in the persons property, whereby employer or cease, such undertakes to or from, purchasing, using, selling, handling, transporting, to refrain or dealing any products any producer, otherwise or services of processor, distributor, supplier, handler, or manufacturer which are any territory in trade or commerce in distributed of the United Columbia, any territory or the District of or States between such another, any territory any or between such or territories and or District of foreign nations, States Columbia or with State any or between District Columbia and State or States or foreign nations, doing or to cease business with person shall be unlawful.”

intended to subject such activity only to regulation under the National Labor Relations Act and § 303 of the Labor Management Relations Act. judicial imposition of “independent federal remedies” not intended Con gress, no less than the application of state law to union conduct that is either protected or prohibited by federal labor law,13 “to upset threatens power balance of be tween labor and management expressed in our national labor policy.” Morton, Teamsters v. 377 U. atS., 260. See Carpenter's NLRB, S.,U. at 98-100; National Woodwork NLRB, Assn. 386 U. S., at Mfrs. 619-620. Accordingly, the judgment before us should be affirmed. fully 13 I conclusion, ante, agree with the Court’s 635-637, at federal law pre-empts the state sought law Connell apply Local secondary 100’s activity in this case.

Case Details

Case Name: Connell Construction Co. v. Plumbers & Steamfitters Local Union No. 100

Court Name: Supreme Court of the United States

Date Published: Oct 6, 1975

Citation: 421 U.S. 616

Docket Number: 73-1256

Court Abbreviation: SCOTUS