1 - National Labor Relations Board

102 Thirty-fourth Annual Report of the National Labor Relations Board
8 (b) (4) (B). In rejecting the contention that the right-of-control
test can no longer be considered of decisive significance in
view of certain language of the Supreme Court in the National
Woodwork s° opinion, the Board pointed out that the Supreme
Court had specifically noted that the right-to-control doctrine
was not before it. In announcing that it would continue to use
the test in appropriate circumstances in determining whether
a secondary boycott exists, the Board expressed its view that
the `right-of-control' test . . . is the most readily available analytical
tool in deciding the primary-secondary dichotomy and conforms,
we believe, with the congressional intent in proscribing
secondary boycotts."
The right-of-control test was relied on by the Board in Carpet
Layers, Loc. 419, 81 where it found that the union violated section
8(b) (4) (i) and (ii) (B) in picketing a retail department store
in furtherance a the union's dispute with carpet installers whose
services were utilized by the store in installing carpet it sold.
Finding that the installers were independent contractors with
a scope of decision-making power adequate to resolve the underlying
dispute, and that the store was "not sufficiently related
to the contractors to destroy its neutrality," the Board concluded
that the picketing was for the unlawful object of forcing the
store to cease doing business with the installers, and therefore
was prohibited secondary activity. In the Local 1066 case, 82 however,
the Board found reliance upon the right-of-control test
to be misplaced. There the Massachusetts Port Authority as
operator of a port terminal exercised it reserved option under
published terminal regulations to direct the agent for a steamship
line to have all freight not claimed by the consignee within
the 5-day free-time period removed to a public warehouse. The
union representing the employees of the steamship agent refused
to permit them to effect the transfer of the cargo as directed,
since removal of the unclaimed cargo would eliminate employment
for the clerk crews represented by the union who were
required under the contract to be present with the cargo so long
as it remained on the dock. The Board rejected the view that as
the port authority alone had the power to invoke the regulation,
it had the right of control and the steamship agent employer
s° National Woodwork Mfrs. Assn. v. N L.R.B., 386 U.S. 612, 625; Thirty-second Annual
Report (1967), p. 139. The Court of Appeals for the Eighth Circuit expressed the view
that under that decisions the right-of-control was only one of many factors to be weighed,
American Boiler Mfrs. Assn. v. N.L.R.B., 404 F.2d 556.
Carpet, Linoleum, Soft Tile & Resilient Floor Covering Layers, Loc. 419 (Sears, Roebuck
& Co.), 176 NLRB No. 120.
s2 Loc. 1066, I.L.A. (Bay State Stevedoring Co.), 175 NLRB No. 5.