UNITED STATES SUPREME COURT DECISIONS ON-LINE

Section 8(e) of the National Labor Relations Act (Act) proscribes secondary agreements between unions and employers -- that is, agreements that require an employer to cease doing business with another party. However, § 8(e) contains a proviso which exempts from the proscription of § 8(e) agreements between a union and an employer in the construction industry concerning the contracting or subcontracting of work to be performed at a construction jobsite. In No. 80-1798, petitioner Woelke & Romero Framing, Inc. (Woelke), and respondent union, in negotiating a new collective bargaining agreement, reached an impasse over the union's demand for a clause that would prohibit Woelke from subcontracting work at any construction jobsite

"except to a person, firm or corporation, party to an appropriate, current labor agreement with the appropriate Union, or subordinate body signatory to this Agreement."

When Woelke's construction sites were picketed in support of the union's demand for the subcontracting clause, Woelke filed unfair labor practice charges with the National Labor Relations Board, asserting that subcontracting clauses are sheltered by § 8(e)'s construction industry proviso only if they are limited in application to particular jobsites at which both union and nonunion workers are employed. Woelke argued that, because the clause sought by the union violated § 8(e), the picketing violated § 8(b)(4)(A) of the Act, which prohibits coercing an employer "to enter into any agreement which is prohibited by" § 8(e). The Board held that subcontracting clauses are lawful whenever they are sought or negotiated in the context of collective bargaining relationships, and that therefore picketing to obtain such a clause was permitted under § 8(b)(4)(A). In Nos. 80-1808 and 81-91, a labor dispute resulted in unfair labor practice charges' being filed against respondent union by a member (petitioner in No. 80-1808) of an association of construction industry clubjuris

Page 456 U. S. 646

employers (petitioner in No. 81-91), challenging the validity under § 8(e) of a subcontracting clause which was substantially similar to the clause involved in No. 80-1798, and which was included in a collective bargaining agreement between the union and the association. The Board held that such clause was protected by the construction industry proviso. The Court of Appeals consolidated the petitioners' requests for review of the Board's orders and ultimately decided to enforce the orders, holding that union signatory subcontracting clauses are protected so long as they are negotiated in the context of a collective bargaining relationship, and that picketing may be used to obtain such a clause.

Held:

1. The construction industry proviso to § 8(e) ordinarily shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective bargaining relationship, even when not limited in application to particular jobsites at which both union and nonunion workers are employed. The subcontracting clauses at issue here are protected by the proviso. Pp. 456 U. S. 652-665.

(a) The plain language and the legislative history of § 8(e) and the construction industry proviso clearly indicate that Congress intended to protect subcontracting clauses like those at issue here. Pp. 456 U. S. 652-660.

(b) The legislative history does not support petitioners' argument that the proviso was intended primarily as a response to the decision in NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675 -- which held that picketing a general contractor's entire project in order to protest the presence of a nonunion subcontractor is an illegal secondary boycott -- and thus should be interpreted as permitting only those subcontracting agreements that are designed to reduce friction at jobsites where union workers are forced to work alongside nonunion workers. The proviso serves a variety of purposes unrelated to that case's holding, and, even as a response to that case, is only partly concerned with jobsite friction. Pp. 456 U. S. 661-662.

(c) While subcontracting clauses like those at issue here create "top-down" pressure for unionization -- requiring subcontractors, in order to obtain work, to force their employees to become union members -- such pressure is implicit in the construction industry proviso, and Congress thus decided to accept whatever top-down pressure such clauses might entail. Moreover, the top-down organizing effect of such clauses is limited by other provisions of the Act. Pp. 456 U. S. 662-665.

2. The Court of Appeals was without jurisdiction to decide that unions do not violate § 8(b)(4)(A) when they picket to obtain a subcontracting clause sheltered by the construction industry proviso. Neither Woelke nor the Board's General Counsel raised that issue during the proceedings before the Board in No. 80-1798, and thus judicial review is barred by § 10(e) of the Act, which provides that "[n]o objection that has not been clubjuris

Page 456 U. S. 647

urged before the Board . . . shall be considered by the court." The § 10(e) bar applies even though the Board held that the picketing was not banned by § 8(b)(4)(A). Woelke's failure to object to the Board's decision in a petition for reconsideration or rehearing prevents consideration of the question by the courts. Pp. 456 U. S. 665-666.

654 F.2d 1301, affirmed in part, vacated in part, and remanded.

MARSHALL, J., delivered the opinion for a unanimous Court.