494 F.2d 1230 | 2d Cir. | 1974
This appeal from an order of the District Court for the Southern District of New York granting an injunction against picketing on a petition of the Regional Director of the Labor Board under § 10(í) of the National Labor Relations Act raises important questions concerning the interpretation of §§ 8(b)(4), 8(b)(7), and 8(e) of the National Labor Relations Act and the standard governing the issuance of injunctions under § 10(1).
I.
The facts are simple and largely undisputed: Hazantown, Inc., a New York corporation, is engaged in the business of importing and arranging for the manufacture of women’s garments. As a “jobber” in the manufacturing process, Hazantown follows the predominant pattern of the New York garment industry. It purchases raw materials from suppliers, delivers them to contractors who manufacture garments according to Hazantown’s specifications, and upon redelivery sells the garments to retail establishments. Because of this method of operation, Hazantown maintains only about seven employees, primarily shipping clerks and office workers.
On September 12, 1973, agents of the Joint Board of Coat, Suit and Allied Garment Workers’ Unions, I.L.G.W.U., visited Hazantown and requested it to sign the Joint Board’s standard jobber’s agreement. This agreement between the union and the jobber, characterized as “the Employer,” regulates many terms and conditions of employment of the workers in the shops of contractors, but expressly states that it “shall not be applicable to any workers employed by the Employer on his own premises or in his inside shop whether the same is located on his premises or elsewhere.” With respect to employees of contractors, the agreement deals with a great variety of subjects. Summarily stated, it provides for the fixing of piece rates; requires the jobber to provide and pay the full cost of disability benefits established by law of the State of New York; makes the jobber responsible for the payment of semi-annual work bonuses and re
Hazantown rejected the demand of the union agents. On September 17 the union began picketing Hazantown at the building in which it was located. The picket signs said;
Strike
Hazantown, Inc.
Mary Allen Payne
followed by the name of the union.
After a brief evidentiary hearing the district judge found that the union’s purposes were as stated in its letter of October 18. He had no difficulty in distinguishing Dallas Building & Construction Trades Council v. NLRB, 130 U.S.App.D.C. 28, 396 F.2d 677 (1968), on which the General Counsel heavily relied — nor, as will be seen below, do we. He was “inclined to think that this kind of picketing in the garment industry comes within the policy exemption provided by the Congress in Section 8(e) as it is a logical concomitant to protect its own workers, as well as complying competitors in an industry so structured.” However, he read our decisions construing § 10(1) as limiting him in effect to determining whether the Regional Director’s conclusion that an unfair labor practice had been committed was more than frivolous, and whether there was some harm justifying issuance of a temporary injunction. Finding, as is not disputed, that the picket line had induced truckmen not to deliver goods to Hazantown and that Hazantown’s business was seriously affected, he issued an injunction pending final adjudication by the Board of the unfair labor practice charge which the General Counsel had filed.
The union appealed and sought an expedited hearing and a stay. Upon our indicating willingness to grant the former, counsel cooperatively withdrew his request for the latter pending determination of the appeal.
II.
Unless the hearing on the complaint later filed by the General Counsel should develop facts or points of law differing substantially from those presented to the district judge and to us, we would decline to enforce an order finding that the union had violated § 8(b)(7)(C).
Provided, further, That for the purposes of this subsection (e) and sec*1234 tion 8(b)(4)(B) the terms “any employer”, “any person engaged in commerce or an industry affecting commerce”, and “any person” when used in relation to the terms “any other producer, processor, or manufacturer”, “any other employer”, or “any other person” shall not include 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. The development of the unique struc-
ture of the garment industry, particularly in New York City, was well described by Judge Weinfeld in Greenstein v. National Skirt & Sportswear Ass’n, Inc., 178 F.Supp. 681, 687-688 (S.D.N.Y. 1959), appeal dismissed, 274 F.2d 430 (2 Cir. 1960). While the cited pages of the opinion can be read to advantage, their nub is as follows: Garment manufacturers, in an effort to avoid unionization, largely abandoned their “inside shops,” transformed themselves into jobbers, and then engaged contractors to do the actual manufacturing. “The jobber had no direct dealing with employees, was not responsible to them for wages, and was unconcerned with hours and adequate standards. . . . The contractors were in fierce competition with one another for the patronage of jobbers and inside manufacturers. The essential basis of this intense competition was reduced labor costs. The brunt of this economic rivalry was borne by the workers and reflected itself in depressed wages and substandard labor conditions.” Since unionization o.f one contractor would be ineffective if the jobber could turn to a non-union competitor, the weapon developed by the union to meet this was to require the jobber to agree to deal only with unionized contractors.
A possible problem concerning the consistency of the union’s practice with § 8(b)(4) of the National Labor Relations Act as amended
When the Landrum-Griffin bill, which modified § 8(b)(4), was under discussion by the House of Representatives in 1959, counsel for the union caused the Ives-Taft colloquy to be replayed in questions by Representative Teller of New York to Representatives Landrum and Griffin. 105 Cong.Ree. 14508-09 (Aug. 13, 1959), reprinted in 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 1680-81. Both accepted Senator Taft’s interpretation. The prospective enactment of § 8(e) and, possibly, other considerations led representatives of the garment workers union to feel that something more was needed. The result was the garment industry proviso which we have quoted. As Senator Javits noted during debate, the proviso was intended to permit the I.L.G.W.U. to continue “present unionization practices throughout the integrated production process” without being hampered by the Landrum-Griffin Act. 105 Cong.Ree. 16428 (Sept. 3, 1959), reprinted in 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 1446.
Not disputing any of this, the General Counsel contends that the proviso does not modify § 8(b)(7)(C). This is true enough in the abstract; if the union were attempting to organize the employees of Hazantown, nothing in the proviso would entitle it to picket without filing a petition under § 9(c) within thirty days. But the union made clear and the district judge found that the union had no intention or desire of doing anything of the sort. It may well be, as the General Counsel contends, that a union which is demanding changed terms or working conditions for employees of a jobber cannot escape § 8(b)(7)(C) simply by disclaiming an intention to represent them. Compare Centralia Building & Construction Trades Council v. NLRB, 124 U.S.App.D.C. 212, 363 F.2d 699, 701 (1966); Dallas Building & Construction Trades Council v. NLRB, supra, 396 F. 2d at 683. But, here again, the union was doing nothing of the sort; the jobber’s agreement it was trying to force on Hazantown expressly provided that the contract did not apply to Hazantown’s employees. While those employees were entitled to bargain to prohibit or limit the amount of subcontracting, Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), nothing in the jobber’s agreement would prevent this. Although the agreement would restrict their future freedom to bargain about the terms of subcontracts, e. g., by insisting that Hazantown should not use
The further argument that, because the agreement forces a jobber to do many things for the benefit of a contractor’s employees, the jobber becomes a co-employer of the latter, thus triggering § 8(b)(7)(C) since the union was interested in organizing the employees of contractors, is likewise unpersuasive.
What the General Counsel is attempting here is to employ a strained and wholly unnatural construction of § 8(b)(7)(C) in order to produce a result contrary to that which Senator Taft had assured was not intended by the secondary boycott provisions of the Taft-Hartley Act and Representatives Landrum and Griffin had assured was not intended by the similar provisions of the 1959 amendments which they sponsored. The garment industry proviso to § 8(e) subsequently developed was intended to strengthen the assurances so given, not to weaken them. A court should require clear language or legislative history to support a conclusion that the 1959 Congress intended § 8(b)(7)(C), which was added mainly to prevent “blackmail picketing,” see Dallas Building & Construction Trades Council v. NLRB, supra, 396 F.2d at 680; 105 Cong.Rec. 5952, 13092, 16426, reprinted in 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 1175, 1523, 1444, to deprive the garment workers’ unions of the strongest weapon in their armory and to leave them free only to picket contractors whom they had already organized;
With this background, we turn to the decisions principally relied on by the Board to support its concededly novel application of § 8(b)(7)(C) — Dallas Building & Construction Trades Council v. NLRB, supra, 396 F.2d 677; Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council v. NLRB, 415 F.2d 656 (9 Cir. 1969); and Samuel E. Long, Inc., 201 N.L.R.B. No. 42, enforced without opinion sub nom. NLRB v. Building & Construction Trades Council, 485 F.2d 680 (3 Cir. 1973).
Both Dallas and Lane-Coos-Curry-Douglas, which followed it over a vigorous dissent, involved the Board’s condemnation of picketing alleged to violate § 8(b)(7)(A), which makes recognitional picketing an unfair labor practice,
(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act.
In both cases a council representing a number of unions in the building trades picketed general contractors, whose employees were already organized, in an effort to force the general contractors to sign an agreement against subcontracting to subcontractors who did not have union agreements. The courts sustained the Board, broadly on the ground that the councils were seeking to superimpose an added term upon a collective bargaining agreement already made between the contractor and a union representing his employees. As Judge McGowan pointed out in Dallas, 396 F.2d at 681, the association representing the general contractors had “already bargained with several of the local craft unions for the omission of subcontracting clauses from their agreements,” making concessions of other sorts.
Moreover, even picketing is permissible if the coverage of the proposed contract is limited to the type of work which is never performed by the general contractors’ own employees.13
That is the situation here. Hazantown’s employees had never performed the type of work covered by the proposed jobber’s agreement, and the agreement made clear that it was to have no application in the unexpected event that Hazantown should change its policies and manufacture garments in an inside shop. While the quoted statement was made in the
The Long case, the only one of the three under § 8(b)(7)(C), provides the General Counsel no greater comfort, at least so far as the merits are concerned. When the matter came before the district court on an application under § 10(Z), the.,court found no merit in the General Counsel’s position that a trade council violated § 8(b)(7)(C) by picketing a unionized general contractor to obtain an agreement to subcontract only with unionized firms, Samoff v. Building & Construction Trades Council, 346 F.Supp. 1071 (E.D.Pa.1972). The Third Circuit’s reversal, 475 F.2d 203 (3 Cir.), vacated and remanded for mootness, 414 U.S. 808, 94 S.Ct. 151, 38 L.Ed.2d 44 (1973), was based solely on the court’s narrow view of the permissible scope of a district court’s inquiry in a § 10 (Z) proceeding — the subject of Part III of this opinion. In the unfair labor practice proceeding, the Administrative Law Judge sustained the General Counsel’s theory, although carefully limiting his holding to a case in which the employer’s own employees could have done the work that was the subject of the proposed subcontracting agreement. The Board affirmed the Administrative Law Judge’s rulings, but placed its decision on a second ground as well, finding that on the facts an objective of the picketing was to organize employees of the contractor. 201 N.L.R.B. No. 42, at 2-3. The court of appeals doubtless relied on the Board’s express factual finding of an organizational purpose, as it seems highly unlikely that, in the face of the district judge’s considered opinion in the § 10(Z) case, it would have granted enforcement without opinion had it intended to embrace the General Counsel’s new interpretation of § 8(b) (7) (C).
We therefore think the district judge was right in concluding that if the Board should decide, in the pending unfair labor practice case, that the union had violated § 8(b)(7)(C), which we are by no means sure it will, the order would not be enforced unless some new facts or legal theories should appear.
III.
The General Counsel contends that even if this be so, the district court was bound under § 10 (Z)
Consideration of the problem should begin with Mr. Justice Douglas’ classic opinion in Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944), a decision of such widely recognized significance that it is not unreasonable to attribute knowledge of it to at least some of the framers of the Taft-Hartley Act of 1947 in which §§ 10(j)
Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.
Although the district court had permissibly found, 49 F.Supp. 528 (D.D.C.1943), that Hecht Company’s violations had occurred unintentionally and that, once they had been brought to light, the company had corrected them and taken vigorous steps to prevent recurrence, a divided court of appeals had reversed the district for refusing to issue an injunction, 78 U.S.App.D.C. 98, 137 F.2d 689 (1943), on the ground that once violations had been found, issuance of an injunction was mandatory since the statute said it “shall be granted.” The Supreme Court reversed. The pertinent portion of the opinion merits quotation, 321 U.S. at 329-330, 64 S.Ct. at 591 (emphasis in original):
A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances. We cannot but think that if Congress had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made.
We do not stop to compare the provisions of § 205(a) with the requirements of other federal statutes governing administrative agencies which,*1241 it is said, make it mandatory that those agencies take action when certain facts are shown to exist [citing National Labor Relations Act, 29 U.S. C. § 160(c); Clayton Act, 15 U.S.C. § 21; Federal Trade Commission Act, 15 U.S.C. § 45(b)]. We are dealing here with the requirements of equity practice with a background of several hundred years of history. Only the other day we stated that “An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.” Meredith v. Winter Haven, 320 U.S. 228, 235, [64 S.Ct. 7, 88 L.Ed. 9], The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular ease. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied. . . . ' Hence we resolve the ambiguities of § 205(a) in favor of that interpretation which affords a full opportunity for equity courts to treat enforcement proceedings under this emergency legislation in accordance with their traditional practices, as conditioned by the necessities of the public interest which Congress has sought to protect.
Our inquiry thus becomes whether, in enacting § 10 (l), Congress made such “an unequivocal statement of its purpose” as to compel a court of equity to issue an injunction pending a decision by the Board on an unfair labor practice charge, despite its conviction that, on what had been presented to it, the court would not enforce an order finding an unfair labor practice. The words of § 10 (1) certainly do not make such an unequivocal statement. “Reasonable cause to believe,” a phrase often used in the law, is not generally satisfied by so modest a showing as is here claimed to suffice. And saying “the district court shall have jurisdiction to grant such in-junctive relief” would be a strange way of declaring that it must do so even when it was convinced that no violation of law had occurred. We therefore turn to the legislative history to see whether this justifies or requires a different conclusion.
Sections 10(j) and (Í) have their origin in S. 1126, 80th Cong. 1st Sess., as reported. See 1 Legislative History of the Labor Management Relations Act, 1947, 130-32. The accompanying report, authored by Senator Taft, explained, ' id. at 433:
Experience under the National Labor Relations Act has demonstrated that by reason of lengthy hearings and litigation enforcing its orders, the Board has not been able in some instances to correct unfair labor practices until aftér substantial injury has been done. Under the present act the Board is empowered to seek interim relief only after it has filed in the appropriate circuit court of appeals its order and the record on which it is based. Since the Board’s orders are not self-enforcing, it has sometimes been possible for persons violating the act to accomplish their unlawful objective before being placed under any legal restraint and thereby to make it impossible or not feasible to restore or preserve the status quo pending litigation.
In subsections (j) and (l) to section 10 the Board is given additional authority to seek injunctive relief. By section 10 (j), the Board is authorized, after it has issued a complaint alleging the commission of unfair labor practices by either an employer or a labor organization or its agent, to petition the appropriate district court for temporary relief or restraining order. Thus the Board need not wait, if*1242 the circumstances call for such relief, until it has held a hearing, issued its order, and petitioned for enforcement of its order.
Section 10(i) makes it mandatory upon the Board to petition for injunc-tive relief in the case of strikes or boycotts that are alleged to constitute unfair labor practices within the meaning of paragraphs (A), (B), and (C) of section 8(b)(4). Moreover, cases of this type are to be given priority, and when the Board agent charged with the investigation has reasonable cause to believe that the charge is true and that a complaint should be issued, he is required to petition the district court for appropriate injunctive relief pending final adjudication by the Board.
Nothing in this remotely suggests the “unequivocal statement” to which the Court had referred. Rather, as said by Justice Douglas, supra, 321 U.S. at 329, 64 S.Ct. at 591, “A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances.” When the question is viewed from the time frame of 1947, it seems particularly unlikely that Congress would have wished the courts to act so freely in granting injunctions theretofore forbidden in § 4 of the Norris-LaGuardia Act of 1932, 29 U.S.C. § 104.
This court has previously held that a district court should apply general equitable criteria when the Board seeks an injunction under § 10(j). McLeod v. General Electric Co., 366 F.2d 847 (2 Cir. 1966), vacated as moot, 385 U.S. 533, 87 S.Ct. 637, 17 L.Ed.2d 588 (1967). Presumably those criteria would include some likelihood of success.
While we do not deny that some of this court’s opinions construing § 10(0 contain bits and pieces of language mildly favorable to the Board’s position, we have been cited to no decision going so far as the Board would have us go here and, taken as a whole, their thrust is to the contrary. In a relatively early case, Douds v. Local 50, Bakery & Confectionery Workers, 224 F.2d 49 (2 Cir. 1955), a distinguished panel, speaking through Judge Swan, affirmed the denial of an injunction on the basis that the Regional Director lacked reasonable cause to believe the union had violated § 8(b)(4)(C) as it then stood although neither the district court, 127 F.Supp. 534 (S.D.N.Y.1955), nor this court characterized the Board’s contention as “insubstantial and frivolous.” Douds v. In
The subject was further discussed in McLeod v. National Maritime Union, 457 F.2d 1127, 1133 (2 Cir. 1972). Although the court reversed the district court’s denial of an injunction on the basis that there was “reasonable cause to believe that the unfair labor practice charged had been committed and that its continuation ought to be enjoined,” we find nothing in Judge Waterman’s opinion that would take us as far down the road to nearly complete judicial abdication by the district court as the General Counsel here seeks. Danielson v. Local 275, Laborers International Union, 479 F.2d 1033 (2 Cir. 1973), is even wider of the mark. In that case, the district judge, although properly convinced that there was reasonable cause to believe a violation had occurred, had denied an injunction solely because he found that the picketed employer would not suffer irreparable harm. Without reaching the question whether irreparable harm must always be demonstrated in a § 10(1) case, this court reversed because “there was a clear showing of substantial and irreparable harm to the Employer which under any construction of the Act should have resulted in the issuance of the preliminary injunction sought by the Regional Director,” 479 F.2d at 1036. Finally, Kaynard v. Independent Route-men’s Ass’n, 479 F.2d 1070 (2 Cir. 1973), reversed the denial of an injunction because the district court had not limited itself “to the question as to whether or not there was reasonable cause for the Regional Director to find [an unfair labor practice],. but rather finding on the merits that there was no violation,” 479 F.2d at 1072. Examining the record, the court on appeal concluded there was ample reason to think that an unfair labor practice had been committed, and the court ordered the injunction to issue on that ground.
The Third Circuit argued in Schauf-fler, supra, 292 F.2d at 188, that “ [i] f, in a Section 10 (i) proceeding, a district court or a court of appeals undertook to finally adjudicate” propositions of law, “it would not be acting consistently with the congressional policy underlying Section 10(Z)But we are not undertak
When Congress enacted § 10(l), it was thinking primarily of the run of the mine cases where the law was relatively plain although the facts might be in serious dispute, not of a new adventure of the General Counsel in the interpretation of a statute fourteen years after it had come on the books. In such a ease it is more realistic to regard the status quo as what everyone had assumed it to be until General Counsel evolved his new theory, rather than this employer’s position the moment before the pickets appeared. When that occurs, we think Congress would have wished the courts to perform their traditional role rather than enjoin conduct which they consider clearly lawful even for the interval before the Board has determined whether an unfair labor practice has occurred and has sought enforcement of an order finding that it has. Although the Board has thus far processed the unfair labor practice charge in the instant case with commendable speed, this has not always been true. In any event it runs too much against the judicial grain to enjoin conduct which a court regards as lawful for us to sanction such an injunction without clearer evidence that this is what Congress wanted. While we naturally regret our inability to join with other courts of appeals that have read the statute differently, we must follow our own star.
Prospective picketers should not take our decision here as saying more than it does. When “reasonable cause to believe” turns on disputed issues of fact, the Regional Director may assume these in favor of the charge and the district court should sustain him if his choice is within the range of rationality. If differing inferences may fairly be drawn from the facts he has found, he may choose the one more favorable to the charging party, and this too should be upheld. Even on an issue of law, the district court should be hospitable to the views of the General Counsel, however novel. We hold only that when, after full study, the district court is convinced that the General Counsel’s legal position is wrong, as Judge Gurfein properly was here, it should not issue an injunction under § 10(l).
The injunction should therefore be reversed. Since the General Counsel has suggested no further facts he could advance to sustain the petition, it should be dismissed. See Triumph Hosiery Mills, Inc. v. Triumph International Corp., 308 F.2d 196, 200 (2 Cir. 1962). The injunction is stayed pending the issuance of the mandate and any proceedings the Regional Director may be advised to take thereafter, upon condition that the union revise the sign to eliminate any implication that a strike is in progress at Hazantown when this is not the fact.
. There is some dispute about just how many employees Hazantown has, and precisely what they do. However, at the evidentiary hearing before Judge Gurfein, Hazantown’s president conceded that none of his employees was engaged in the manufacture of garments.
. The union also reserved the right to disapprove any contractor at any time if the contractor failed to abide by its agreement with the union. Upon the union’s disapproval, the jobber would be required to discontinue his relationship with the contractor in favor of one sanctioned by the union.
. Mary Allen Payne is a holding company for Hazantown.
The General Counsel has made no point concerning the ambiguous and possibly misleading nature of the sign; doubtless this could have been cured by negotiation.
. This makes it an unfair labor practice for a labor organization
(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing : Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct au election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided, further, That nothing in this subparagraph (0) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual emjdoyed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.
. After argument in this case, we were informed that the Administrative Law Judge in the unfair labor practice proceeding had held that the union was guilty of violating § 8(b)(7)(C). The judge apparently did not accept the General Counsel’s primary theory —that picketing the jobber's premises to obtain a clause that prohibits subcontracting to nonunion contractors was, in itself, a violation of the Act. Instead, he found that under the terms of the union’s proposed subcontracting agreement, I-Iazantown would have been required to “bargain with the Union about the [contractors’] employees’ conditions of employment,” and that picketing to that end was proscribed by § 8(b)(7)(C).
. As is well known, the body of § 8(e) was intended to overrule, for industry in general, the holding of Local 1976, United Bhd. of Carpenters & Joiners v. NLRB (Sand Door), 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958), that under previous legislation such agreements were not in themselves illegal although certain types of efforts to enforce them were.
The full text of § 8(e) is as follows:
(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter*1234 containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection (e) and section 8(b)(4)(B) the terms “any employer”, “any person engaged in commerce or an industry affecting commerce”, and “any person” when used in relation to the terms “any other producer, processor, or manufacturer”, “any other employer”, or “any other person” shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception.
. Section 8(b)(4), which was amended in ■1959, now reads as follows :
(b) It shall be an unfair labor practice for a labor organization or its agents—
(4) (i) 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) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is:
(A) forcing or requiring any employer or self-employed person to join any labor or emj)loyer organization or to enter into any agreement which is prohibited by section 8(e) ;
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful,
*1235 where not otherwise unlawful, any primary strike or primary picketing ;
(C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 9;
(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certificate of the Board determining the bargaining representative for employees performing such work:
Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.
. Even this would seem to go beyond the strict letter of the narrow construction industry proviso, as the Board initially held, Colson & Stevens Constr. Co., 137 N.L.R.B. 1650 (1962). However, after several reversals in the courts of appeals, the Board revised its stance to hold that economic coercion to obtain a subcontracting clause was permissible, Centlivre Village Apartments, 148 N.L.R.B. 854 (1964), remanded on another ground sub nom. Northeastern Indiana Bldg. & Constr. Trades Council v. N. L. R. B., 122 U.S.App.D.C. 220, 352 F.2d 696 (1965).
. A leading textwriter, not anticipating the General Counsel’s present effort, wrote only three years ago, “Inasmuch as the [garment industry] exemption is an absolute one (whereas the construction industry exemption is limited), there is no room for disagreement as to the meaning of the proviso; consequently, no litigation has resulted.” Morris, The Developing Labor Law 674 (1971). The General Counsel has provided some aid in construing the exemption, ruling that it is legal for a union and jobber to agree that the jobber will utilize only unionized contractors. 46 L.R.R.M. 1502 (1960).
. We see no force in the General Counsel’s reference to NLRB v. International Union of Operating Engineers, 331 F.2d 99, 105-107 (3 Cir. 1964), holding that § 8(b)(7)(C) is applicable even when an employer has no employees but the union endeavors to force him to sign an agreement recognizing the union. This falls well within the primary objective of the section, namely, to prevent “blackmail” picketing to .force recognition when a union cannot establish its majority status at an election. Here the union has not sought and does not want recognition by the jobber.
. Recognitional picketing of unorganized contractors clearly would be subject to § 8(b)(7)(C), as indicated above. Picketing of unionized contractors to prevent them from dealing with jobbers who had not signed the jobbers agreement would be ineffective so long as there was an adequate supply of unorganized contractors.
. The majority in Lane-Goos-Gurry-Douglas similarly noted the Board’s finding “that several of the provisions of the proposed contract related to subjects already covered by the collective bargaining agreements between themselves [the general contractor] and locals of the Laborers’ and the Carpenters’ Unions and would have modified the terms of the latter agreements.” 415 F.2d at 659.
. See also the discussion, 396 F.2d at 680, where the court points out that “there are some types of work, laboring and millwrights’ work, for example, which the general contractors sometimes subcontract and sometimes perform with their own employees.” This is not the case with I-Iazan-town or in the garment industry generally.
. This reads in relevant part as follows :
(l) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), or (G) of section 8(b), or section 8(e) or section 8(b)(7), the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate in-junctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law.
. Courts in most of the circuits have adopted tiie “reasonable cause to believe” standard for granting 10(1) injunctions, although usually without elaboration. See, e. g., Sachs v. Local 48, Journeymen & Apprentices, 454 F.2d 879, 883 (4 Cir. 1972) ; Retail, Wholesale & Department Store Union v. Rains, 266 F.2d 503, 505 (5 Cir. 1959) (probable cause) ; AFTRA v. Getreu, 258 F.2d 698, 699 (6 Cir. 1958) ; Cosentino v. United Bhd. of Carpenters, 265 F.2d 327, 330 (7 Cir. 1959) ; Madden v. International Hod Carriers’ Union, 277 F.2d 688, 690 (7 Cir.), cert, denied, 364 U.S. 863, 81 S.Ct. 105, 5 L.Ed .2d 86 (1960) ; Local Joint Board, Hotel & Restaurant Employees v. Sperry, 323 F.2d 75, 77 (8 Cir. 1963). The Ninth Circuit has expressly adopted the “insubstantial and frivolous” standard of the Schauffler case, San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 544-545 (9 Cir. 1969) ; Kennedy v. Los An-geles Typographical Union No. 174, 418 F.2d 6, 8 (9 Cir. 1969) ; Hoffman v. Cement Masons Local 337, 468 F.2d 1187, 1193 (9 Cir. 1972), cert, denied, 411 U.S. 986, 93 S.Ct. 2269, 36 L.Ed.2d 964 (1973). In a recent opinion dealing with an injunction under § 10 (j), the Fifth Circuit approved the tichauffler standard for both 10(j) and 10(l) cases, Boire v. International Bhd. of Teamsters, 479 F.2d 778 (5 Cir. 1973).
. This reads :
(j) The Board shall have power, upon issuance of a complaint as provided in subsection (b) charging that any. person has engaged in or is engaging in an unfair labor practice, to petition any United States district court within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.
. The difference of opinion between the district court and this court in McLeod v. General Electric Co., supra, did not relate to use of the likelihood of success test in the decision to grant or deny an injunction. Judge Frankel had recognized that a district court “might well hesitate to issue an injunction on what it determines are fallacious legal premises,” 257 F.Supp. 690, 710 n. 16 (S.D.N.Y.1966).
. This strong language was doubtless inserted to head off the proposal of Senator Ball, and later of Senator Aiken, which would have authorized employers to seek injunctions for illegal picketing in some circumstances. See 93 Cong.Rec. 5036-49, 5064-70 (May 9, 1947), reprinted in Legislative History of the Labor Management Relations Act, 1947 at 1347-70, 1377-90. Congressional distrust of the Labor Board’s willingness to seek injunctions against picketing did not extend to action by the courts in ruling upon applications for such injunctions.
. This court has cited the Third Circuit’s Schauffler decision in two § 10 (Z) cases, McLeod v. Teamsters Local 282, 345 F.2d 142, 145 (2 Cir. 1965), and McLeod v. National Maritime Union, 457 F.2d 490, 493 (2 Cir. 1972), but on neither occasion did the court adopt the “frivolous and insubstantial” language from that opinion.
. It seems to be common ground that no Supreme Court decision deals with the issue.
. We do not regard the contrary suggestion in dictum in McLeod v. National Maritime Union, supra, 457 F.2d at 1133, as altering the clear rule set out in these cases.
. E. g., Schauffler v. Local 1291, Int’l Longshoremen’s Ass’n, supra, 292 F.2d at 187; AFTRA v. Getreu, supra, 258 F.2d at 699; Madden v. International Org’n of Masters, Mates & Pilots, 259 F.2d 312, 313 (7 Cir.), cert, denied, 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 229 (1958) ; Local Joint Board, Hotel & Restaurant Employees v. Sperry, supra, 323 F.2d at 77; Warehousemen’s Union, Local 6 v. Hoffman, 302 F.2d 352, 353 (9 Cir. 1962). See also Angle v. Sacks, 382 F.2d 655, 661 (10 Cir. 1967) (§ 10(j) ) ; Minnesota Mining & Mfg. Co. v. Meter, supra, 385 F.2d at 269 (§ 10(j) ).
Judge Goldberg, in Boire v. International Bhd. of Teamsters, supra, 479 F.2d at 793, stated the correct view:
The factual findings of the District Court, i. e., what happened and what will happen, are reviewable under the “clearly erroneous” standard as are all factual questions. The need for equitable relief is left to the discretion of the District Court in the first instance and is only reviewable to the extent that such discretion has been abused. The lower court’s legal conclusions . . . are subject to the same standard of review as any legal conclusion of the District Court: was it correct?
