business within the meaning of section 8(b)(4)(A) of the Act, prior to the 1959 amendments. * * *
"While the old Section 8(b)(4)(A) became section 8(b)(4)(B) by virtue of the 1959 amendments, it was not otherwise changed to the extent pertinent here. * * *
"Under all the circumstances of this case, and particularly in view of our holdings in similar case decided under section 8(b)(4)(A) of the Act before the 1959 amendments, the retention of that section's language in the present section 8(b)(4)(B) as explained above and the strongly declared Congressional purpose to prohibit the use of secondary pressure and economic force by Unions to secure an objective such as Respondents sought by its picketing herein, we must find that Respondents' picketing of Colson violated section 8(b)(4)(i) and (ii)(A) and (B) of the Act."
Petitioner urges that this Court should recognize the construction of section 8(e) expressed by the Board in the foregoing language because "the construction of a new statute by the agency administering it is entitled to 'peculiar weight'" (citing Norwegian Nitrogen Products Co. v. United States, 1933, 288 U.S. 294, 53 S. Ct. 350, 77 L. Ed. 796); but the cited opinion also states "that administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction" (p. 315, 53 S. Ct. p. 358). I respectfully reject as a precedent here the Board's conclusion in Colson and Stevens that the agreement there in question was "prohibited by Section 8(e)" of the Act for the simple reason that the agreement presently in question is expressly excepted from the prohibition of that section by the proviso thereof upon which the Carpenters here rely. Moreover, the clause in dispute expressly limits the Union, in requesting employees under the agreement to leave jobs where a non-union condition exists, "to the extent legal." And Section 2 of Article 18 would render the existence of such a non-union condition a matter for arbitration. The case before me is, in my opinion, factually parallel with the situation which confronted Judge Wright in 193 F.Supp. 392, and with that dealt with by Judge Kilkenny in disposing of the section 8(b)(4)(A) charge in 199 F.Supp. 775.
It is my conclusion, based upon the evidence which has been produced before me, and as a result of my construction of the provision of the Act upon which the charging party bases its unfair labor practice complaint, that the portion of the language of Article XVIII, section 1, to which Association objects and which Council insists upon having included in the new collective bargaining agreement is valid, and would be enforceable under the provisions of section 8(e) of the Act as amended. I also conclude that the strike which has been called by Respondent of the carpenter members who are employees of the three remaining "holdout" contractor members of the Association, is a legal means for the enforcement of such inclusion. The Act protects the right of employees to strike in support of their demands. 29 U.S.C.A. § 163.
I further conclude that the inclusion of the language of the clause referred to relates to contracting or subcontracting of constructing work to be done at the site of the construction projects of Association members within the meaning of the proviso contained in section 8(e) of the amended Act.
I determine that neither the inclusion of the language in question, nor the employment of a strike to force such inclusion is an unfair labor practice within the meaning of section 8(b)(4)(A) of the Act as amended.
Since there appears to be no basis upon which the Board may properly conclude that the charged unfair labor practice exists, the Board's petition for preliminary injunction is denied.
This opinion shall constitute my findings of fact and conclusions of law, as required by F.R.Civ.P. Rule 52(a), 28 U.S.C.
Let an order in compliance herewith be presented.