*1 disрutes, to their important relevant stated factual all suggests argument This control. which, explained, of as we have imma- about the relation of complex issues before the discovery immunity questions to the control terial discretion to trial court’s alleged appellants’ in suits Court. While District summary procedures role of as state- perceived issues be disputed Fortu- at issue. immunity is where official the District disagreement of resolving ments however, the difficulty nately, law, are not findings they of “factu- Court’s proce- claim in this factual appellants’ preclude summary al” issues such with the not commensurate dural context is plainly had judgment. District Court might issues these interrelated difficulties authority appellants’ discovery to stay pose. otherwise question as not to the of request “relevant” accord are to That the district courts it. law before relevancy of weight concept to the great IV. recently was CONCLUSION discovery of motions disposing in Her- emphasized by Supreme Court reasons, we affirm the foregoing For the Lando, 441 bert v. S.Ct. of the District Court. Whether judgment (1979): 60 L.Ed.2d complained might or not the acts of here all of the discovery provisions, like under the subject different treatment [T]he Procedure, of are sub- Federal Rules Civil Act is Foreign Intelligence Surveillance they injunction Rule 1 ject that need in this case. occupy matter not us speedy just, “be construed secure and in specific facts of this On every inexpensive determination at the of the law existed time light end, requirement action.” To this place, took disputed when the surveillance sought in 26(b)(1) Rule that the material it must be found the acts of the Attor- firmly discovery be “relevant” should be were protected by the doctrine ney and the district should applied, courts judgment qualified immunity. discovery power restrict neglect accordingly the District Court is affirmed. “justice requires [protection where for] ordered. So embar- party person annoyance, from rassment, burden or oppression, or undue 26(c). . . .” Rule With
expense hand, authority judges should
hesitate to exercise
control
appropriate
discovery process.
over the
COMPANY,
HOFF ELECTRIC
J. F.
(emphasis
Id. at
request designed elicit documents *2 Miami, Fla., Radford, for peti- R.
William D. Hurtgen, Washington, Peter J. tioner. C., petition- an for appearance also entered er. B., Bader, N. L. R. Atty., B.
Richard D.C., E. with whom Robert Washington, Allen, Acting Associate Gen. Counsel Moore, Associate Coun- Deputy Elliott Gen. brief, for sel, D.C., were on Washington, respondent. Lewis, Kaplan, and Roger Ste-
Robert S. Bokat, D.C., Washington, phen A. brief, curiae, amicus Chamber Com- for America, merce of the United States re- petition for granting urging view case remand. Cohen, Dunn, J. X. and Laurence
Thomas D.C., brief, amicus were on for Washington, Trades curiae, Building and Construction AFL-CIO, urging denial Department, for petition review. Miami, Fla., Kaplan, H. Joseph Mi- brief, Joseph Segor, C. intervenor. for ami, Fla., appearance also entered intervenor. Judge, WIL- WRIGHT,
Before Chief WALD, Judges. KEY and Circuit filed Circuit Opinion for the Court Judge WALD. Judge Circuit
Dissenting opinion filed WILKEY. project on a residential construction
WALD, Judge: Circuit Beach, North Palm Florida. The poses problem This southern itself was located at the extreme up by a con gate,” whether a set “neutral more 1600 feet end of a site which was than em to insulate neutral struction contractor gates two into the long. There were impact site from the ployers a common *3 at the gate, the north project; “reserved” status picketing, protected of union lost its project, from away far end the site the the by to used supplies, when intended Hoff’s which was marked for the use of owned but ordered and primary employer1 certain other sub- employees, suppliers, and project, the of the construction by owner contractors, gate “neutral” and the south pri through gate. the were delivered which was project the near construction Compa Hoff mary J. F. Electric employer, with the by everyone else connected used charge labor practice filed unfair ny, an construction, course of project. During the Board with the National Labor Relations but twice as needed Hoff once or a week 323, Int’l when the Local Brotherhood schedule, any not on fixed Consolidated Workers, picketed gate, Electrical the electri- Company Electric delivered Supply violated the charging that the Union had to fixtures the owner cal ordered “secondary picketing” ban Section employees a trailer on the site. Hoff 8(b)(4)(i) (ii)(B) of the Labor and National and up the at the trailer Act, 158(b)(4)(i) picked and fixtures Relations 29 U.S.C. § buildings. them new Con- (ii)(B).2 gate ruled had installed in the The NLRB that the status, gate for such deliv- temporarily, lost its neutral at least solidated the south November, 1977, began the Union practice and dismissed Hoff’s unfair labor eries. In publicizing dismiss complaint. appealed gate Hoff has north We employees al. affirm the Board’s action. that Hoff protesting fact less In De- paid wages. than Union
FACTS cember, 1977, saw picketers Consolidated workers, Hoff, through fixtures employs delivering non-union electrical pickets engaged to system gate to install electrical south and moved Provided, cases, nothing secondary boycott “primary That contained in this sub- ployer” employer (b) is with Union which the section shall be construed to make unlaw- dispute. is embroiled in a labor by any person upon to ful a refusal enter (other premises any employer his than provides: 2. The statute employer), employees own if the of such em- practice It shall be an unfair labor ployer engaged are in a strike ratified or organization (4)(i) agents labor or its ... approved by employ- representative of such in, engage encourage any induce or to or employer required ees whom to rec- such employed by engaged any person individual ognize under this Act: industry affecting in in commerce or an com- further, purposes Provided That for in, engage merce to a refusal in strike or (4) only, paragraph nothing contained use, employment the course of his manu- prohibit paragraph such shall be construed facture, process, transport, han- or otherwise publicity, picketing, pur- than other materials, any goods, articles, or dle work truthfully advising pose public, includ- services; perform any or commodities or to or- consumers and members of a labor (ii) threaten, coerce, any or or restrain ganization, product products or are person that a engaged in commerce or an indus- employer try commerce, produced affecting whom the an with where either object organization primary dispute thereof is- labor has a long employer, another distributed (B) publicity forcing requiring any person as such inducing any does not have an effect or by any per- employed using, selling, handling, transporting, cease individual any dealing products or primary employer otherwise in the son other than the manufacturer, producer, processor, other or employment pick course of his refuse doing any or to cease business with deliver, any goods, up, transport or not to Provided, person, nothing ... That contained services, perform establishment (B) in this clause shall be to make construed employer engaged in such [.] distribution unlawful, unlawful, any where not otherwise primary picketing; strike or indeed, along dispute; with which it has a labor began picketing also They and the south exempted fence between from expressly such Af- project. boundary southernmost in section prohibitions contained assur- the Union Hoff wrote days ter four not, however, 8(b)(4).5 Union would ing it that to force employer a neutral in order picket on its gate; the north henceforth use doing ceаse business advice, there- pickets Union’s attorney’s Such primary employer. gate. They from the south upon withdrew an at- “secondary” it constitutes area of in front of the picket continued to into the tempt party to draw a however, work, several hun- between the union and dispute gate.3 from the south away dred feet secondary in which employer, *4 interest, DECISION THE BOARD’S and which has no direct employer of is findings powerless its it to resolve. On adopted The Board the Judge (ALJ), ruling Law sites, Administrative work side where subcontractors many of the south had neutrality the other, each upon and are by dependent side delivery of by been Consolidated’s breached attempt principles to reconcile these the and thus by be installed fixtures to legitimate both the and to accommodate 8(b)(4) of no violation the Union committed in economic bringing of the union interest Board relied picketing gate. at that by primary employer pressure to bear on the Engineers, Operating on Int’l Union of of neu- and the interests through picketing, (Linbeck Corp.), Construction Local No. 450 wish not to be involved employers tral who enforced, 550 (1975), 997 F.2d 219 NLRB especially diffi- dispute, proved in has the (5th 1977), proposition Cir. a to strike reasonable attempt cult. In an essen- “any gate used to deliver materials in among competing interests balance the oper- normal primary employer’s tial to the situation, prаctices rules certain subject picketing,” ations to lawful is unanimously ap- F.2d The Board also Board and by at 318.4 have evolved the been the south- picketing along found the Dock, Dry In proved by the courts. Moore was lawful end of the site ernmost supra, NLRB the Board announced intent, secondary ap- to any and unrelated which, met, pre- if raise criteria a several four-prong test out plying the set Sail- picketing is situs sumption that common (Moore Dry Dock ors’ of the Pacific Union and not a sec- against primary directed (1950), which is Company), are: Those rules ondary employer. scope of permissible used to determine the secondary a premises [Picketing of the employers. by many a site shared picketing fol- if meets the employer primary (a) lowing conditions: SCOPE OF CON- THE PERMISSIBLE the situs of STRUCTION SITE PICKETING to times when strictly limited em- secondary is located dispute It is Principles: settled 1. Settled (b) time of the at the primary employer premises; a may picket ployer’s union delivery January, contention that electrical Court en- [t]he a U.S. District operations joined picketing except all in the immediate fixtures not “essential” to charged vicinity as here with an electrical contractor of the north gen- system for of an electrical installation its a contention that falls of eral contractor is aspect Murphy as to this 4. Member dissented weight of the Board’s and the rationalе own emphasized She fact that the case. fully applicable here in in Linbeck is decision dismissing delivery was of stone raw Linbeck material to be converted ployer crushed complaint. instant by primary em- product, here into a finished while fin- “Provided, nothing in this That contained ished fixtures delivered which her view unlawful, (B) make shall be construed to clause primary were not “materials used” unlawful, any primary where otherwise ployer, supplies or normal “essential to [its] primary picketing[.]” 29 U.S.C. strike or operations.” Board’s to Member answer 158(b)(4)(ii)(B). § Murphy’s dissent was that picket spect equivalent is en- line is not the employer situs; inducing object at the has an normal business gaged in its in concerted employees engage rea- those places is limited (c) the picketing situs; order conduct location sonably close force him to to deal with the refuse clearly that discloses (d) employer. struck employer. is with the dispute drawing of However lines difficult Id., (footnotes omitted). obvious, statute more nice than com- It has also been decided Accordingly, the task. the Board pels to isolate and the courts that in order Board attempted courts to devise and the have disruption and to labor minimize heavily drawing upon reasonable criteria work work force in common the entire means to which a union resorts in situations, be re special gates may situs Although ri- promoting cause. “[n]o who is the served for subcontractor rule which would make ... few gid [a] object employ long So as the picketing. de- factors conclusive is contained ees that subcontractor statute,” from ... ducible “[i]n gate, to that the union limited the union of an absence admissions others not picket gate” the “neutral intent, per- of acts illegal nature involving dispute. in the involved A formed shows the intent.” *5 plant by primary at a the picketing owned 673-74, (citations and 81 at 1289 Id. S.Ct. Local of Electri employer, Int’l Union omitted). upholding In the footnotes Electric), (General cal Workers v. NLRB assign gate a employer’s right to struck to 592 6 L.Ed.2d U.S. independent contractors not involved in the the limi (1961), legitimacy established of a in order to insulate them from the dispute designated to picketing specially tation of picketing, the Court was careful effects gates object the of the by primary used practice could to assure the Union that the time, the picketing. At same the Court away from keep pickets not be used to any “mechanically ap cautioned primary or of the customers plied” disregard that fundamental tests ployer: object of the if it is picketing, criteria: that, if the The Union claims Board’s disrup must legitimate, be limited to will be free to ruling upheld, employers is If, tion primary employer’s of the business. deliveries, for cus- separate gates erect from all the it can be deter circumstanсes tomers, replacement and workers which is object picketing that mined of the picketing. This will be immunized from employees secondary inducement problem key fear is baseless. The strike, cease forcing employer thus their is type being found in the of work that doing employer, business with the primary by separate performed those who use the picketing secondary activi unlawful the Board has significant It is ty. The Court acknowledged: rationale, first applied since stated Important as is the between distinction where present to situations legitimate “primary activity” and banned perform- independent workers were “secondary activity,” present it does not oper- the normal ing tasks unconnected to glaringly bright objectives line. The employer-usually ations struck any picketing include to influ- a desire buildings. In work on his withholding ence others from from the situations, indicated limitations such trade. employer services or respect balance picketing activity not, not, for or sought Congress has competing interests “[IJntended not, aimed for or of neutral employees On the required the Board to enforce. hand, take were employers sympathetic gate do action if a de- separate deliveries, put and on their pressure regular with strikers do for bar- plant vised employers.” own But at that location would ring ... employees pri- which induces re- a clear on traditional secondary make invasion goal pri- of this light neutral em- traditional activity appealing mary Congress intend- pressures we think employer’s mary tasks aid the whose ployees during picket preserve right ed to everyday operations. for employees strike a reserved (emphasis 680-81, Id. at 81 S.Ct. at delivery furnishing day-to- neutral men added).6 plant’s regu- day essential to the service case, United gate” In a “reserved second lar operations. (Carrier of America v. Steelworkers (emphasis at 904 U.S. at S.Ct. 899, 11 492, 84 L.Ed.2d Corp.), added). legiti (1964), the Court found track, Thus, Docks special long Dry owned Moore spur mate at railroad so as the met, of the neu employees legitimate- and reserved for limitations are a union onto the em get work in such a ly picket tral railroad at a common situs and cus- premises suppliers, to make deliveries ployer’s way employees, that all fact up shipments. The determinative pick reached tomers to a gate-belonged not that neutral in- employers may pickets; neutral railroad, but neutral party, if picketing only sulate themselves from routine serv deliverymen furnishing ob- faithfully gate practice the reserved normal oper the employer’s ices essential to These are not principles served. legitimate objects of the ations and so were case; concededly since in this Consolidated appeal. Agаin union’s Court regu- primary gate south about General Elec emphasized, speaking were it would end here larly, analysis our : tric argument advanced suppli- one of its separate gate picketing Consolidated was legality ers, being of work but rather depended upon type the fix- paid who used that owner who ordered employees done tures, simply fact another thus was in employees if of those gate; the duties *6 making deliv- project, subcontractor on the opera- with the normal were connected owner, using the properly and directed eries to the employer, picketing tions of the use of who must issue activity, protected primary to them was the order to avoid gate the was to the reserved but if their work unrelated “neu- assertedly an legitimate picketing of employer’s of the day-to-day operation dispute in is the of the gate labor tral” focus plant, picketing the was unfair case. practice. 497-98, at at 903. Ownership Argument: S.Ct. Legal 2. The rejected any rule which specifically
Court
Building &
Denver
Construction
NLRB v.
at gates
would make
unlawful
picketing
Council,
Trades
personnel
opposed
as
only by delivery
used
Supreme Court
(1951), the
Picketing
major
interdependence,
been a
not all
traditionally
has
legit-
be considered
goals
project
of a
construction
can
weapon
implement
to
of
when the
characteristically
objects
been
imate
strike and has
con-
The case
is
but one of them.
approaching
aimed at all those
situs
with
object of
avowed
selling, delivering
whose
or
cerned a strike the
mission
con-
on a
operations
general
was
a
contractor
contributing
otherwise
to force
its contract
to terminate
endeavoring
project
which the strike is
to halt.
struction
persons dealing
employer
8(b)(4)(A)
them ...
Speaking
and
the Court said:
of Sec.
organization
long
not ...
did
so
as
labor
striking
organi-
“left a
labor
Thus
section
employees
encourage the
or
‘induce
including
persuasion,
pick-
zation free to use
employer
engage
or
concerted
to
in a strike
a
eting,
primary employer
not
on the
employment’
of their
refusal
in the course
employees
his
Among
but on numerous others.
secondary employees who
these were
672,
ing, all
Court’s
subcontractors
work,
“related”
in
doing
struction site
Milling,
are
ion in
in
indicated
Rice
which we
down,
one
shut
the
any
that if
of them were
picketing
location of the
at the
the
to halt.
If
project
eventually grind
would
primary employer’s premises was “not
Elec-
Building
Denver
survived the General
legality.
necessarily conclusive” of
later,
decision;
the
tric
a decade
decided
at
964. Where
U.S.
at
permissible
of
the con-
scope
picketing
by
secondary employ-
the work done
the
struction
is not so broad.
industry
operations
ees is
unrelated
normal
Building prin-
status
Denver
present
of the
of the
difficult
primary employer, it is
by
today,
need
decided
us
ciples
not be
perceive
pressure
how the
of
even
Denver
because we conclude
if
neutral
the
on the
entire situs
less
vitality,
Board’s
Building retains its full
merely
because the
employer
is correct.
decision
this case
While not
property
takes
place
owned
project
all subcontractors on a construction
employer.
struck
proper
are a
be-
object
picketing simply
of
And
U.S. at
ployer. The ease with which were success- Thus if the other, subcontractors on the site employees to cross convincing its own avoided, ful in simply by could re- completely job, line and remain on products picket to deliver its quiring Consolidated *10 propriety the of the southern fence operations its day-to-day continue could carry to the Finding efforts on its own merits. picketing the Union’s unaffected simply picking up entirely lawful under public, pickеting the message its to southern from the standards, them it needed the supplies Dry its Moore Dock Board the completely This would contractor. could be that no unlawful intent concluded of the Union’s major a element eliminate it. inferred from persuade to to right right try the picket, dispute that any There cannot be serious not to deal primary employer’s a fence in fact satis- picketing the southern dispute. of the labor with it for the duration Dock. The Dry fied the strictures of Moore impact in on We difference the can see no employ- while Hoff picketing only occurred this circumven- between rights the Union’s working buildings, the new ees were on at- in a deliberate being accomplished tion in their nor- engaged Hoff’s workers were impact picketing diffuse tempt work, electrical doing mal business of by the contrac- accomplished being and its dispute was disclosed that beginning at the relationships up tual set Hoff, was and, with only since we project. either the construction tip a at located the extreme southern looking to the realities approve Board's site, out- 1600 foot construction than to relationships involved rather clearly point was side the fence that title.11 We affirm legal the formalities dis- close” of the “reasonably situs that unfair labor the Board’s conclusion no were work- pute, employees where the Hoff Union’s practice сommitted ing. of the south point Hoff is in its that Moore correct tool, evidentiary merely PICKETING only THE Dock Dry SITUS picketing is raising presumption a that the originally Although Union had un- affirmative evidence of lawful absent it with picketed gate, the north after secondary intent. Hoff contends lawful gate, pickets from the it drew south of a reserved date very that the existence picket along fence continued occur, plus the fact could site, edge of nearest build southern by neutral employed other workers ings which under construction. Hoff also see the presumably contractors could fact, argues that that in this indicates We pickets, constitutes such evidence. moving intent from the north Union’s is not that this neces- agree the Board employers in its gate was to enmesh neutral presumption sarily sufficient rebut with Hoff. Hoff contends that dispute Dry of the Moore raised satisfaction gate, a at which since there was reserved is no evidence Dock standards. There be message the Union’s could carried to all appeal employ- the record of direct pick no need to employees, there was engage ees of neutral contractors accomplish et the southern fence in order to end, in order to activity, strikes or concerted concededly legitimate and thus an doing busi- employers be inferred. The force their to cease impropеr motive could did not ask allegation by analyz- pickets dealt ness with Hoff. The Board with this particular pointing a It is worth out how narrow is the factual determination whether point opinion party “supplier” who use the re- contention between our a must agree gate, the dissent. We both that not all con to me- served the Board is restricted working together legal tractors a construction title and con- chanical determination legitimate objects appeal relations, site are of a apply union’s whether tractual them; dispute focusing actually when the is with but one of we test on who is commonsense agree gate system may delivering the reserved supplies use protect employer. isolate do believe Denver We employers; agree former, and we struck proper em and we believe mandates ployer’s employees, customers interests those balance the union's use job must the reserved order to maintain employers site struck the neutral system. integrity only disagree by the latter. whether, making ment us is between
1277 line, to ing. The General Electric decision affirms picket unions to honor their other work, employers ask their cease or to right picket gates by of unions to used Rather, on Hoff. the Union bring pressure of an customers and industrial indicating that signs with simply picketed, plant, grounds this constitutes tra- Hoff, with as near as only dispute was primary picketing activity.2 ditional Den- employees Hoff’s possible to where hand, Building, protects ver on the other targeted clearly Its was working. independent at common situs was thus lawful employees, at Hoff’s and projects picketing by from un- picketing. grievances against ions with other contrac- unfair of Hoff’s The Board’s dismissal working tors at the same construction site.3 charges is affirmed. practice labor present case is that problem Our (Consoli- Supply Co. Consolidated Electric WILKEY, dissenting: Judge, Circuit dated) a common situs appears to be both to decide this ease majority purports supplier independent contractor and narrower” than the Gen- principle on a “far (Hoff), Hoff Electric Co. standard, eral Electric work-relatedness whom the union bears its ployer against Supreme “fully consistent” with seems to be an grievance. Consolidated Building for standard in Denver Court’s the Denver contractor within independent To picketing.1 situs construction common rule, it has a Building separate because reasoning in by majority’s legal judge materials to the arrangement provide abstract, might agree one owner of the construction and conclude that this deci- characterization works, contracted for arrangement an precedent follows from and marks sion as the electrical before Hoff was selected one But when nothing very significant. hand, the оther Consoli- subcontractor. On light of the actual looks at the decision of Hoff within to be a dated seems contractor relation- independent nature of rule, lighting Electric since the General site, ap- it becomes ships on a construction Hoff’s by are installed provides fixtures it effect of the ma- parent practical that the tension, it is result of this electricians. As a inroads jority’s holding makes serious with a rule, whether a union Building question a difficult against the Denver worse, extension be able to any logical Hoff should grievance future common si- reasoning to majority’s used Consolidated. picket separate gate virtually leave tus cases would question answer to this I believe that an Building of Denver at all. nothing analysis from an logically does follow area; it is in this precedents Supreme Court in this case arises from difficulty deci- majority’s contrary answer Supreme tension between the Court deci- sions in Electric and Denver Build- sion. cases, Dry industry Moore Dock standards Maj. op. at picket require union used that the 761,
2. Local
Int’l Union of Elec. Workers v.
has its
with whom the union
680-81,
(General Electric),
667,
366 U.S.
picket separate gates
primary dispute, and not
1285, 1293,
(1961).
81 S.Ct.
procure the independently materials for primary objects picketing. again of Once them to use. we see the same tension with Denver Build- will Of course some subcontractors have ing, since many independent contractors suppli- materials delivered to them their are, view, in a “common sense” customers ers in using addition to or instead of mate- of other independent contractors. provided rials to the construction site independent sup- contractors. direct Such On a common situs construction pliers ofmay picketed course be under the the extent of common sense customer rela- reasoning Building, they Denver since as rela- tionships just supplier as broad independent are not of the primary employ- tionships. any The customer of Hoff or еr to whom they present deliver. But the other skilled service subcontractor case is far clearly different: Consolidated is services; who receives the person independent of Hoff. Consolidated sold contractor or general would be either the owner; electrical directly fixtures owner. In the case of subcontractors Hoff had relationship no with Consolidated general con- provide who materials to the and no relationship direct even with the tractor, not their customers include owner, general Hoff was hired contractor but also the other inde- general contractor, purpose and was hired for the install, use, or pendent subcontractors installing the fixtures not providing but assemble the materials.
them.8
those
all
picket
If
is allowed to
a union
majority’s opinion is to
The
effect
fall into the
common sense view
who
out of
independent
take such
contractors
supplier
and
categories
Electric
General
they
whenever
Building
the Denver
rule
customer,
vastly expand
union can
“suppliers,” and to
can be characterized as
can trace the
We
targets
picketing.
of its
subcontrac-
allow
service
reasoning in terms
majority’s
effects
to the
contrac-
spread
independent
tors
majority’s
earlier illustration.
our
they
use.
provide
tors who
materials
holding
suppliers
as to
allows
alone creates a
аspect
This
of the decision
contrac-
with a skilled service
labor
Building,
to Denver
but
major exception
contracts to
group
in the second
tor
majority’s opinion
the effect of the
does
deci-
“supplier”
Electric
to the
contractors
spread
end
here. Under the
761,
323, IBEW,
Elec. Workers v.
Local
Int’l Union of
8. Local
(NLRB
9. See
No. 12-CC-1006
Electric),
(General
reprinted
Apr. 1979),
Appendix
13-16
(decision
ALJ).
plant
goes
It
with-
site
the situation.”33
to construction
realities of
truly
applicable
stan
apply
now
line of reason-
out
that to follow this
cases,
saying
we should
then
reasoning of General
Build-
on the
Denver
consistently
dard based
is to overrule
ing
plant cases.30
industrial
and other
Electric
ing.34
shown,
would
so,
we have
as
To do
important argument
further
There is one
Building precedent.
to the Denver
contrary
Build-
at the Denver
against nibbling away
majori-
tendency
appreciate
To
customary inde-
ing
respect
rule and its
for
not overrule
if
reasoning to undermine
ty’s
relationships
at con-
contractor
pendent
to note
it is instructive
Building,
Denver
Supreme
since the
sites. Ever
struction
majority’s
between
parallel
the close
Building
Denver
decision in
Court’s
in his
Douglas
that of Justice
reasoning and
at-
object
almost annual
has been the
seen,
we have
As
Building
Denver
dissent.
legisla-
it
Congress to overrule
tempts by
sense,
a common
majority substitutes
to reverse
normally hesitate
tively. Courts
interrela-
contractor
assessment of
realistic
Congress
since
statutory
interpretation,
formalistic distinction
place
of a
tionships
it wishes.
if
change
by legislation
can
such as
on factors
among contractors based
warranted
fully
is most
This reluctance
Douglas appar-
Justice
legal ownership.31
wheth-
length
Congress
when
deliberates
reasoning
line of
this
ently recognized
decides not
legislatively and
er to overrule
to the Denver Build-
contrary
directly
ran
to.
decision,
in dissent
argued
for he
am-
received
situs
has
Common
strike
right
had made
Court
recently. Oppo-
legislative
attention
ple
arrange-
business
“dependent on fortuitous
pressed
have
nents of Denver
far as
significance
no
so
ments that have
realities of the situa-
argument
that “the
con-
boycott are
secondary
the evils of the
construction contractors
of a
tion” show that
cerned,”32
presence
and that “[t]he
NLRB,
Corp.
maj. op.
550 31.
v.
See
29. See Linbeck Constr.
at 1271-1272.
F.2d at 317-18.
Council,
Bldg.
v. Denver
Trades
32. NLRB
Nevertheless,
Linbeck,
op-
943, 953,
the result in
675, 693,
Two our banc attempted to ex-
years unsuccessfully have secondary
pand scope permissible products of struck sold
businesses,39 and to broaden extent preservation agreements
which work secondary boycott
justify the exertion cases
pressures.40 sharply both divided re- Appeals was
en banc Court decision Supreme major-
versed Court.41 present in the
ity’s
represents,
decision
438,
Enterprise
Pipefitters
Rep.
Cong.,
v.
40.
Ass’n of Steam
See
No.
94th
1st Sess.
35.
S.
(1975)
Bldg.
NLRB,
(D.C.Cir. 1975) (en banc),
(quoting
10-11
NLRB v. Denver
F.2d 885
Council,
507,
891,
675, 693,
rev’d,
L.Ed.2d 1
Trades
429 U.S.
S.Ct.
J.,
(1951) (Douglas,
(1977).