McGowan, Robinson and Robb, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
LOCAL 742, UNITED BROTHERHOOD OF CARPENTERS, and JOINERS OF
AMERICA, JOHN FOREMAN, BUSINESS AGENT, and HAROLD
Petition for Review of Order of National Labor Relations Board.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
Opinion for the Court filed by Circuit Judge McGowan.
As critical, as it is subtle and difficult, is the distinction in labor law between "primary" and "secondary" activity. It is one that must be drawn by the National Labor Relations Board and reviewing courts in determining whether a labor union has violated the statutory ban on secondary boycotts. National Labor Relations Act § 8(b)(4), 29 U.S.C. § 158(b)(4); see National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 645, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967). The Board has, for a number of years, applied a per se "right to control" test in adjudicating Section 8(b)(4)charges. Under that test, the Board, even after it concludes that a union's refusal to work was for the purpose of preserving work that has historically and traditionally been performed by the unit, will nevertheless find the activity to be secondary if the employer did not have the legal right to control assignment of the disputed work. See, e.g., Deangulo & Local Union No. 98 (York Corp), 121 NLRB 676, 685-86 (1958); Pipe Fitters, Local 120, 168 NLRB 991, 992 (1967).
In its initial decision in this case, the Board applied its right to control test and found the union in violation of Section 8(b)(4). 178 NLRB 351 (1969). On review here, a division of this court found the Board's use of the per se right to control test invalid and remanded the case to the Board for an adjudication of the 8(b)(4)charge "under all the surrounding circumstances," including the facts concerning right to control assignment of the disputed work. Local 742, Carpenters v. NLRB, 144 U.S. App. D.C. 20, 444 F.2d 895, 903 (D.C. Cir.), cert. denied sub. nom. J. L. Simmons Co. v. Local 742, Carpenters, 404 U.S. 986, 30 L. Ed. 2d 371, 92 S. Ct. 447 (1971). The Board, claiming that it had looked at all the relevant circumstances, again found a Section 8(b)(4)violation. 201 NLRB 70 (1973). The union then sought further review in this court, arguing that the Board had actually reapplied the right to control test and that the Board's decision was not supported by substantial evidence in the record.
While the case was pending, the court agreed to hear en banc another case, Enterprise Association, Local 638 v. NLRB, 172 U.S. App. D.C 225, 521 F.2d 885 which involved the issue of the validity of the Board's use of the right to control test; and disposition of the present review petition was delayed to await the outcome of the en banc proceeding. Enterprise, decided July 1, 1975, reaffirmed the prevailing rule in this *fn1 and other circuits *fn2 that "the right to control test misconstrues Section 8(b)(4)as interpreted by the Supreme Court in National Woodwork Manufacturers Assn. v. NLRB." 172 U.S. App. D.C. 225, 521 F.2d 885, 888, cert. granted, 424 U.S. 908, 96 S. Ct. 1101, 47 L. Ed. 2d 311 (1976).
The case sub judice thus presents this court with its first post- Enterprise opportunity to review the Board's analysis of "all the surrounding circumstances" in a case that would otherwise have been determined on the basis of the right to control test. We conclude that the Board's findings are not supported by substantial evidence in the record, and that its order under review must be set aside. I
In July, 1966, the J. L. Simmons Co., Inc. (Simmons) signed a contract with the Decatur and Macon County Hospital Association (Hospital Association) for the purchase of materials for and the construction of additions to the Hospital Association's Decatur, Illinois facilities. Simmons, as the general contractor, hired a number of Local 742 carpenters to perform appropriate carpenter duties on the project. *fn3 At the time the contract was signed, it called for installation of several hundred wood doors, *fn4 a task that might have been expected to provide considerable work for the carpenters since wood door installation traditionally involves prior preparation (trimming, cutting, routing, mortising) as well as actually hanging the doors. *fn5
The Hospital Association, however, expressly reserved in the contract the option to switch to more expensive premachined plastic-clad doors if adequate financing became available. On August 15, 1966, the Hospital Association and Simmons agreed to substitute premachined plastic-clad doors for the originally specified wood doors. And in mid-November of 1967, approximately eighty of the premachined plastic-clad doors arrived on the construction site.
Simmons apparently recognized that installation of factory prepared doors would cause some controversy with the union, for Simmons wrote to its attorneys on November 18, 1967 concerning these premachined doors and "the Philadelphia precut door case," obviously referring to National Woodwork Manufacturers Association (supra). Meanwhile, one of the members of Local 742 brought the premachined doors to the attention of John Foreman, business representative of Local 742. Foreman consulted the union's attorney, who advised Foreman that the union had "the right to refuse to install these doors [to] protect the ...