is between two unions as to which should perform certain work. If Congress legalizes common situs picketing in the construction industry, it should be made clear that it does not thereby intend to inhibit the Labor Board in obtaining injunctions when picketing is in furtherance of jurisdictional disputes.

I recognize, of course, that the language of H.R. 100 attempts to grant a qualified privilege to construction unions to engage in picketing of an entire construction site. One condition to the exercise of that privilege is that such activities, in the words of H.R. 100, not be "otherwise unlawful under this Act". However, lawyers argue and the Supreme Court recognizes that "otherwise unlawful terminology" is subject to more than one interpretation. United Steelworkers of America, AFL-CIO v. NLRB, 376 U.S. 492, 502 (1964). Does "otherwise unlawful" include a situation where picketing is in violation of 8(b) (4) (D) ? I believe it should be made certain that H.R. 100 will not encourage picketing for jurisdictional reasons.

In order to avoid such undesirable misconstruction, any common situs legislation should insure than when labor organizations are engaged in a jurisdictional dispute, a probable violation of 8(b)(4) (D) will deny them the new privilege of picketing the entire site. Presently, the Board has discretion to seek a 10(1) injunction where a probable violation of 8(b) (4) (D) is involved, but only after ten days have elapsed after the filing of a charge, as provided in Section 10(k). However, where jurisdictional picketing also involves a probable violation of 8(b) (4) (B), it is mandatory that the Board seed a 10(1) injunction immediately. In such circumstances, an employer need not endure ten days of unlawful picketing before an injunction can be obtained.

If H.R. 100 were enacted as presently drafted, it could be construed to deny an employer the relief of an immediate 10 (1) injunction where common situs picketing is employed in an interunion dispute. Thus, even assuming jurisdictional picketing were regarded as "otherwise unlawful", the Board might interpret 8(b) (4) (B), as amended by H.R. 100, to require an employer to pursue 8(b) (4) (D)-10(k) procedures to obtain a Board determination of whether picketing arises out of a dispute which is essentially jurisdictional in nature. If this were the case, instead of being able to obtain immediate 10(1) relief for a violation of 8(b) (4) (B), an employer would be forced to endure ten days of jurisdictional picketing during the waiting perious set forth in 10(k).

Because of the great potential harm such picketing can cause neutral employers, Congress should provide that common situs legislation is not intended to grant construction unions a new weapon in jurisdictional disputes or to deprive employers of presently available immediate 10(1) relief from common situs picketing in such situations. To insure this result, Congress should require the Labor Board to seek immediate 10(1) injunctions where an 8(b) (4) (B) charge is filed and there is "reasonable cause" to believe that common situs picketing is the result of a dispute between unions over certain work. Such a determination should not be conditioned upon an employer's resort to 8(b) (4) (D)-10(k) procedures. The desirable net effect of such a provision would be to deny amended 8(b) (4) (B) privileges in jurisdictional disputes. Appropriately, contractors and subcontractors at a construction site, who under present law are deemed to be neutral in interunion disputes, would retain their neutral status and rightfully continue to avoid the harmful effects of jurisdictional common situs picketing.

(Mr. O'Hara submitted the following comments on the Secretary's answers:)

QUESTION NO. 1-DISCRIMINATORY OBJECTIVE

In my opinion, Secretary Shultz's discussion of picketing for racially discriminatory objectives is based on an unacceptable premise that H.R. 100 should be addressed to objectives beyond the limited one of reversing the Denver Building Trades decision. If the Secretary's conclusion that the Labor Act does not cover picketing for a racially discriminatory object in some circumstances is correct, I believe separate legislation to prohibit such picketing is necessary. I do not believe that H.R. 100 is the proper vehicle to do this; H.R. 100 is intended to deal with only one narrow situation arising under section 8(b) (4) of the Labor Act. But my understanding of present law differs from the Secretary's. The Secretary admits that the Labor Act imposes a duty of "fair representation" upon the union, and that it is illegal for a union "representing an employer's employees" to picket that employer "to force him to discriminate on racial grounds against members of the bargaining unit." But the Secretary's memorandum indicates

that this is the extent of the Labor Act's prohibition against union racial discrimination, and that there is no prohibition against action hostile to workers not in the bargaining unit. Thus, the Secretary's memorandum alleges that a union is not prohibited by the Labor Act from picketing "to force the employer to discriminate on racial grounds against employees outside the bargaining unit, against job applicants for unit or non-unit jobs, or against supervisors or applicants for supervisory positions."

It is my understanding that these hypothetical situations of racial discrimination are already prohibited by Title VII of the 1964 Civil Rights Act. Section 703 (c)(3) of that Act makes it unlawful for a labor organization to cause or attempt to cause an employer to engage in a broad category of racially discriminatory acts. If this Civil Rights Act is deficient in coverage or enforcement procedures, it and not the Labor Act is the appropriate statute to be amended to ensure that racial discrimination by labor organizations is illegal.

I further understand that the National Labor Relations Act prohibits the practices in these hypothetical situations, and that the National Labor Relations Board has expressly held that it is an unfair labor practice for a union to force an employer to discriminate against Negro employees in a sister local union, Local 1367, International Longshoremen's Association, 148 NLRB No. 44; that it is illegal for a union to cause the employer to discriminate against employees newly brought into the bargaining unit on racial grounds, International Union, United Automobile Workers and Amalgamated Local 453, 149 NLRB No. 48; and that it is illegal for a union to cause an employer to discriminate on racial grounds against job applicants. Local Union No. 2, United Association of Journeymen of the Plumbing and Pipefitting Industry, 152 NLRB No. 114.

The Secretary's memorandum further alleges that in the St. Louis Arch situation the AFL-CIO Building and Construction Trades Council of St. Louis voted to boycott the construction project “as a result" of the award of a subcontract to a contractor who employed three Negro plumbers. This allegation does not accord with my understanding of the St. Louis Arch situation.

There the U.S. Department of Justice filed suit against the Building Trades Council and certain unions alleging that defendants had engaged in a pattern and practice of racial discrimination in violation of Title VII of the 1964 Civil Rights Act. The District Court dismissed the Title VII suit, finding that "the record is devoid of any specific instance of post-Act discrimination," and holding that "the evidence presented by the Government does not substantiate its allegations that defendants have violated the Civil Rights Act of 1964 * * *” United States v. Sheet Metal Workers Local 26, et al., 280 F. Supp. 719 (E. D. Mo., 1968).

In the Labor Board proceeding, the Board held that the union's activity was an unfair labor practice, but found that the underlying motivation for this activity was the long-standing policy of the Trades Council and its affiliated locals "of not working on construction projects unless 100% AFL-CIO," and not racial discrimination. Smith Plumbing Co., 164 NLRB No. 40 (1967). And although the trial examiner concluded that the Negro tradesmen at the Arch lacked AFL-CIO trade union affiliation "because of the failure of craft unions in the past to furnish a meaningful number of Negro workers apprenticeship training sufficient to permit them to become journeymen plumbers, and to make them eligible for union membership * * ," the Labor Board, in a unanimous decision, expressly rejected this conclusion. Smith Plumbing Co., supra., footnote No. 4.

I further understand that although the U.S. Department of Justice has appealed the District Court's decision to the Court of Appeals for the Eighth Circuit, it has abandoned the claim that the picketing was racially motivated.

QUESTION NO. 2.-STATE LAW REQUIRING SEPARATE CONTRACTS

The purpose of H.R. 100 is to recognize the economic reality of the construction industry-that the prime contractor coordinates the entire process, and accepts bids from subcontractors with knowledge of, and even because of, their labor polities. It therefore makes no sense to treat a contractor and a subcontractor as separate "individuals" for purposes of the labor relations on a common construction site.

Secretary Shultz testified that the proposed Common Situs bill should not be applied to general contractors and subcontractors operating on state projects where state laws require direct and separate contracts. I enquired if the Secre

tary had reference to state laws requiring separate and competitive bidding; or whether he also had reference to a state law which merely declared as a matter of law that contractors and subcontractors were separate entities.

Secretary Shultz replied that "consideration should be given only to such State laws that require separate bids and separate and independent contracts on State and municipal construction projects. There should be no accommodation made for a State law which merely deems, as a matter of law, contractors and subcontractors to be independent of each other."

QUESTION No. 3—JURISDICTIONAL DISPUTES

Secretary Shultz makes two points in response to my question on jurisdictional disputes. First, he indicates that the present prohibition in H.R. 100 against picketing "otherwise unlawful under this Act" might not be interpreted to prohibit jurisdictional picketing which is presently unlawful under section S(b) (4) (D) of the National Labor Relations Act. I myself do not see how words could be clearer. If there could be any doubt on this score, I hope this statement in the legislative history of H.R. 100 will alleviate the Secretary's fears.

Second, the Secretary fears that the present prohibition against jurisdictional dispute picketing is not strong enough. This is, of course, an issue entirely different from the one we deal with in H.R. 100. In any event, I do not share the Secretary's fear.

The Secretary states that he fears that the Labor Board cannot secure an injunction against jurisdictional dispute picketing until "ten days have elapsed after the filing of a charge”.

This is not my reading of the Act.

Section 8(b) (4) (D) of the Act makes it an unfair labor practice for a union to force or require any employer "to assign particular work to employees in a particular labor organization or in a particular trade . . . rather than to employees in another labor organization or in another trade".

Section 10 (L) of the Act mandates that the local officials of the National Labor Relations Board apply for an injunction against any picketing when it is charged (by an employer) that there is a violation of certain union unfair labor practices. Section 10 (L) further provides that "In situations where such relief is appropriate the procedure specified herein shall apply to charges with respect to section 8(b) (4) (D)." In short, the immediate application for an injunction is mandatory whenever a charge of jurisdictional picketing is filed with the local Board office "in situations where such relief is appropriate". There is nothing in either Section 8(b) (4) (D) or Section 10 (L) which grants to labor unions a 10 day grace period for jurisdictional dispute picketing. The injunction is to be sought and enforced by the Court, while the separate administrative hearing on the merits is conducted by the Labor Board.

Section 10(k) directs the Labor Board to determine the merits of the jurisdictional dispute and to award the work to one of the contesting unions "unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute". This "ten days" period for the voluntary adjustment of the dispute by the parties (instead of by the Board) is unrelated to the separate and independent provisions of section 10 (L) authorizing the immediate injunction against picketing while the underlying dispute is resolve either before the Board or by the parties themselves. Mr. THOMPSON. We will now hear the statement of our colleague, the Honorable Phillip Burton of the State of California.

STATEMENT OF HON. PHILLIP BURTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. BURTON. Mr. Chairman and members of the committee, on the first day of this session I introduced legislation akin to that of H.R. 100 by our distinguished colleague, Congressman Thompson.

I am here today to testify in support of H.R. 100. As the members of the committee know, in the adoption of the Taft-Hartley Act in 1918,

Congress made an effort to protect neutral employers from labor disputes in which they were not involved.

Thus we find that section 8 (b) (4) (B) outlawed secondary boycotts. This clause declares it to be an unfair labor practice for a union involved in a dispute with an employer to bring pressure upon another firm with which the employer is doing business. Much to the surprise of most impartial observers the Supreme Court in 1951 applied this secondary boycott clause to a labor dispute on a Denver construction job.

I am here to urge the adoption of H.R. 100 because it will eliminate this unexpected, unanticipated, and undesired interpretation of the language of the present statute wherein the work of many employers is integrated at a single site.

It is difficult, if not impossible to picket one subcontractor with whom a legitimate dispute exists without affecting the work of the primary or other subcontractors. Insofar as these effects are limited to a prime contractor and the subcontractors responsible to him they should not lead to a classification of the primary dispute as a secondary boycott.

As I stated before, H.R. 100 will correct this inequity by adding a simple proviso stating that the secondary boycott clause shall not be deemed to prohibit picketing or a strike on a construction site in the course of a lawful labor dispute if such action is not in violation of an existing collective bargaining contract.

Mr. THOMPSON. Thank you, Congressman Burton for appearing before this subcommittee.

Our next witness is the Honorable Jacob H. Gilbert. Congressman Gilbert represents the 22d Congressional District of New York.

STATEMENT OF HON. JACOB H. GILBERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. GILBERT. Mr. Chairman, and members of the subcommittee, thank you for giving me the opportunity to voice my support of H.R. 100 and my identical bill, H.R. 3092, to amend section 8(b) (4) of the National Labor Relations Act, with respect to strikes at the site of construction projects. Referred to as the "situs picketing bill," I have long been in support of this proposal to restore the economic rights of the building and construction trade unions.

I was disappointed when it did not reach the House floor in the 90th Congress, after being favorably reported and placed on the calendar. It was not the first time the bill had been favorably reported and then failed final congressional action. It has been before the Congress for many years, and it has had bipartisan support in both the Congress and the executive branch. Presidents Eisenhower and Kennedy supported it, as did President Johnson.

The bill is designed to correct an inequity in existing law whereby peaceful picketing by building trades at construction sites is prohibited while similar picketing at plants or factories is and always has been protected. It would simply give the building trades unions the picketing rights all other unions enjoy.

The main argument against the proposal is that a general contractor has no control over a subcontractor who may become involved in a labor dispute. I believe he does have control; he has control over the

quality of work, the time schedule, the quality of material. Buildings or construction projects are usually the products of the combined efforts of many firms working side by side at the site of construction. While they may not have a technical contractual relationship with each other, all these contractors do work together as a team and coordinate operations. Whatever label might be used to describe the relationship, there is still a direct connection between the various contractors. Because of this close relationship on the construction job, it cannot be said the contractors are "neutral" or "innocent" third parties as far as labor and industrial relations are concerned.

The report of the Committee for Economic Development in 1961 stated:

It is difficult, if not impossible to picket one subcontractor with whom a legitimate dispute exists without affecting the work of the primary or other subcontractors. Insofar as these effects are limited to a prime contractor and the subcontractors responsible to him, they should not lead to a classification of the primary dispute as a secondary boycott. The law should be changed to correct this inequity.

The employees of a factory can engage in peaceful picketing in a labor dispute, but construction workers are denied this freedom because of a technicality in the law which failed to take into account the nature of the building and construction industry where, instead of one employer with different departments for different kinds of work, there are numerous contractors on the job site doing different kinds of jobselectrical contractors, bricklayers, carpenters, and so forth. If, for instance, the electricians union pickets a job site because of a dispute with the electrical contractor, and the carpenters, bricklayers and other trades do not cross the picket line, it is held that the electrical union is causing a secondary boycott in violation of section 8 (b) (4) of the TaftHartley Act. Yet, it is legal for industrial unions representing employees of a factory to picket the factory site, even though employees represented by other unions in the factory refuse to cross the picket line. Since a union representing employees in a plant may, in a labor dispute with the plant management, picket the entire plant and all its departments, the building trades union, when engaged in a lawful labor dispute at a construction site, should enjoy the equal right to picket the entire site. This is prevented, however, by the Denver Building Trades case, which treats all contractors as strangers to each other. H.R. 100 and my bill, H.R. 3092, would reverse the Denver Building Trades ruling and would remove inequitable restrictions on activities of the building trades unions at construction sites. It would restore to the building trades the right of peaceful picketing on the site of construction jobs-a right enjoyed by factory employees in a labor dispute. Mr. Chairman, and members of the subcommittee, I ask the committee's approval of this proposed amendment to the National Labor Relations Act. I believe the passage of this legislation is necessary to preserve wage standards in the building and construction industry, for the protection of fair employers from the unfair competitive disadvantages of substandard employers, and in the interest of justice.

Mr. THOMPSON. Thank you. I am sure that you have made a fine contribution to the deliberation of this committee.

At this time we will call upon the Honorable Mario Biaggi, Representative of the 24th District of New York.