Connell Construction Co. v. Plumbers & Steamfitters Local Union No. 100

421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418, 1975 U.S. LEXIS 17

Opinions

Mr. Justice Powell

delivered the opinion of the Court.

The building trades union in this case supported its efforts to organize mechanical subcontractors by picketing certain general contractors, including petitioner. The union’s sole objective was to compel the general contractors to agree that in letting subcontracts for mechanical work they would deal only with firms that were parties to the union’s current collective-bargaining agreement. The union disclaimed any interest in representing the general contractors’ employees. In this case the picketing succeeded, and petitioner seeks to annul the resulting agreement as an illegal restraint on competition under federal and state law. The union claims immunity from federal antitrust statutes and argues that federal labor regulation pre-empts state law.

I

Local 100 is the bargaining representative for workers in the plumbing and mechanical trades in Dallas. When this litigation began, it was party to a .multiemployer bargaining agreement with the Mechanical Contractors Association of Dallas, a group of about 75 mechanical contractors. That contract contained a “most favored nation” clause, by which the union agreed that if it granted a more favorable contract to any other employer it would extend the same terms to all members of the Association.

Connell Construction Co. is a general building contractor in Dallas. It obtains jobs by competitive bidding and subcontracts all plumbing and mechanical work. Connell has followed a policy of awarding these subcontracts on the basis of competitive bids, and it has done business with both union and nonunion subcontractors. Connell’s employees are represented by various building trade unions. Local 100 has never sought to represent them or to bargain with Connell on their behalf.

In November 1970, Local 100 asked Connell to agree that it would subcontract mechanical work only to firms that had a current contract with the union. It demanded that Connell sign the following agreement:

“WHEREAS, the contractor and the union are engaged in the construction industry, and

“WHEREAS, the contractor and the union desire to make an agreement applying in the- event of subcontracting in accordance with Section 8 (e) of the Labor-Management Relations Act;

“WHEREAS, it is understood that by this agreement the contractor does not grant, nor does the union seek, recognition as the collective bargaining representative of any employees of the signatory contractor; and

“WHEREAS, it is further understood that the subcontracting limitation provided herein applies only to mechanical work which the contractor does not perform with his own employees but uniformly subcontracts to other firms;

“THEREFORE, the contractor and the union mutually agree with respect to work falling within the scope of this agreement that is to be done at the site of construction, alteration, painting or repair of any building, structure, or other works, that [if] the contractor should contract or subcontract any of the aforesaid work falling within the normal trade jurisdiction of the union, said contractor shall contract or subcontract such work only to firms that are parties to an executed, current collective bargaining agreement with Local Union 100 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry.”

When Connell refused to sign this agreement, Local 100 stationed a single picket at one of Connell’s major construction sites. About 150 workers walked off the job, and construction halted. Connell filed suit in state court to enjoin the picketing as a violation of Texas antitrust laws. Local 100 removed the case to federal court. Connell then signed the subcontracting agreement under protest. It amended its complaint to claim that the agreement violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1 and 1px solid var(--green-border)">2, and was therefore invalid. Connell sought a declaration to this effect and an injunction against any further efforts to force it to sign such an agreement.

By the time the case went to trial, Local 100 had submitted identical agreements to a number of other general contractors in Dallas. Five others had signed, and the Union was waging a selective picketing campaign against those who resisted.

The District Court held that the subcontracting agreement was exempt from federal antitrust laws because it was authorized by the construction industry proviso to § 8 (e) of the National Labor Relations Act, 49 Stat. 452, as added, 73 Stat. 543, 29 U. S. C. § 158 (e). The court also held that federal labor legislation pre-empted the State’s antitrust laws. 78 L. R. R. M. 3012 (ND Tex. 1971). The Court of Appeals for. the Fifth Circuit affirmed, 483 F. 2d 1154 (1973), with one judge dissenting. It held that Local 100’s goal of organizing nonunion subcontractors was a legitimate union interest and that its efforts toward that goal were therefore exempt from federal antitrust laws. On the second issue, it held that state law was pre-empted under San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). We granted certiorari on Connell’s petition. 416 U. S. 981 (1974). We reverse on the question of federal antitrust immunity and affirm the ruling on state law pre-emption.

II

The basic sources of organized labor’s exemption from federal antitrust laws are §§ 6 and 20 of the Clayton Act, 38 Stat. 731 and 738, 15 U. S. C. § 17 and 29 U. S. C. § 52, and the Norris-La Guardia Act, 47 Stat. 70, 71, and 73, 29 U. S. C. §§ 104, 105, and 113. These statutes declare that labor unions are not combinations or conspiracies in restraint of trade, and exempt specific union activities, including secondary picketing and boycotts, from the operation of the antitrust laws. See United States v. Hutcheson, 312 U. S. 219 (1941). They do not exempt concerted action or agreements between unions and nonlabor parties. Mine Workers v. Pennington, 381 U. S. 657, 662 (1965). The Court has recognized, however, that a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions. Meat Cutters v. Jewel Tea Co., 381 U. S. 676 (1965).

The nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions. Union success in organizing workers and standardizing wages ultimately will affect price competition among employers, but the goals of federal labor law never could be achieved if this effect on business competition were held a violation of the antitrust laws. The Court therefore has acknowledged that labor policy requires tolerance for the lessening of business competition based on differences in wages and working conditions. See Mine Workers v. Pennington, supra, at 666; Jewel Tea, supra, at 692-693 (opinion of White, J.). Labor policy clearly does not require, however, that a union have freedom to impose direct restraints on competition among those who employ its members. Thus, while the statutory .exemption allows unions to accomplish some restraints by acting unilaterally, e. g., Federation of Musicians v. Carroll, 391 U. S. 99 (1968), the nonstatutory exemption offers no similar protection when a union and a nonlabor party agree to restrain competition in a business market. See Allen Bradley Co. v. Electrical Workers, 325 U. S. 797, 806-811 (1945); Cox, Labor and the Antitrust Laws — A Preliminary Analysis, 104 U. Pa. L. Rev. 252 (1955); Meltzer, Labor Unions, Collective Bargaining, and the Antitrust Laws, 32 U. Chi. L. Rev. 659 (1965).

In this case Local 100 used direct restraints on the business market to support its organizing campaign. The agreements with Connell and other general contractors indiscriminately excluded nonunion subcontractors from a portion of the market, even if their competitive advantages were not derived from substandard wages and working conditions but rather from more efficient operating methods. Curtailment of competition based on efficiency is neither a goal of federal labor policy nor a necessary effect of the elimination of competition among workers. Moreover, competition based on efficiency is a positive value that the antitrust laws strive to protect.

The multiemployer bargaining agreement between Local 100 and the Association, though not challenged in this suit, is relevant in determining the effect that the agreement between Local 100 and Connell would have on the business market. The “most favored nation” clause in the multiemployér agreement promised to eliminate competition between members of the Association and any other subcontractors that Local 100 might organize. By giving members of the Association a contractual right to insist on terms as favorable as those given any competitor, it guaranteed that the union would make no agreement that would give an unaffiliated contractor a competitive advantage over members of the Association.¹ Subcontractors in the Association thus stood to benefit from any extension of Local 100’s organization, but the method Local 100 chose also had the effect of sheltering them from outside competition in that portion of the market covered by subcontracting agreements between general contractors and Local 100. In that portion of the market, the restriction on subcontracting would eliminate competition on all subjects covered by the multiemployer agreement, even on subjects unrelated to wages, hours, and working conditions.

Success in exacting agreements from general contractors would also give Local 100 power to control access to the market for mechanical subcontracting work. The agreements with general contractors did not simply prohibit subcontracting to any nonunion firm; they prohibited subcontracting to any firm that did not have a contract with Local 100. The union thus had complete control over subcontract work offered by general contractors that had signed these agreements. Such control could result in significant adverse effects on the market and on consumers — effects unrelated to the union’s legitimate goals of organizing workers and standardizing working conditions. For example, if the union thought the interests of its members would be served by having fewer subcontractors competing for the available work, it could refuse to sign collective-bargaining agreements with marginal firms. Cf. Mine Workers v. Pennington, supra. Or, since Local 100 has a well-defined geographical jurisdiction, it could exclude “traveling” subcontractors by refusing to deal with them. Local 100 thus might be able to create a geographical enclave for local contractors, similar to the closed market in Allen Bradley, supra.

This record contains no evidence that the union’s goal was anything other than, organizing as many subcontractors as possible.² This goal was legal, even though a successful organizing campaign ultimately would reduce the competition that unionized employers face from nonunion firms. But the methods the union chose are not immune from antitrust sanctions simply because the goal is legal. Here Local 100, by agreement with several contractors, made nonunion subcontractors ineligible to compete for a portion of the available work. This kind of direct restraint on the business market has substantial anticompetitive effects, both actual and potential, that would not follow naturally from the elimination of competition over wages and working conditions. It contravenes antitrust policies to a degree not justified by congressional labor policy, and therefore cannot claim a nonstatutory exemption from the antitrust laws.

There can be no argument in this case, whatever its force in other contexts, that a restraint of this magnitude might be entitled to an antitrust exemption if it were included in a lawful collective-bargaining agreement. Cf. Mine Workers v. Pennington, 381 U. S., at 664-665 ; Jewel Tea, 381 U. S., at 689-690 (opinion of White, J.); id., at 709-713, 732-733 (opinion of Goldberg, J.). In this case, Local 100 had no interest in representing Connell’s employees. The federal policy favoring collective bargaining therefore can offer no shelter for the union’s coercive action against Connell or its campaign to exclude nonunion firms from the subcontracting market.

Ill

Local 100 nonetheless contends that the kind of agreement it obtained from Connell is explicitly allowed by the construction-industry proviso to § 8 (e) and that antitrust policy therefore must defer to the NLRA. The majority in the Court of Appeals declined to decide this issue, holding that it was subject to the “exclusive jurisdiction” of the NLRB. 483 F. 2d, at 1174. This Court has held, however, that the federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies, including the antitrust laws.³ We conclude that § 8 (e) does not allow this type of agreement.

Local 100’s argument is straightforward: the first proviso to § 8 (e) allows “an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.”4 Local 100 is a labor organization, Connell is an employer in the construction industry, and the agreement covers only work “to be done at the site of construction, alteration, painting or repair of any building, structure, or other works.” Therefore, Local 100 says, the agreement comes within the proviso. Connell responds by arguing that despite the unqualified language of the proviso, Congress intended only to allow subcontracting agreements within the context of a collective-bargaining relationship; that is, Congress did not intend to permit a union to approach a “stranger” contractor and obtain a binding agreement not to deal with nonunion subcontractors. On its face, the proviso suggests no such limitation. This Court has held, however, that § 8 (e) must be interpreted in light of the statutory setting and the circumstances surrounding its enactment:

“It is a 'familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ Holy Trinity Church v. United States, 143 U. S. 457, 459.” National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 619 (1967).

Section 8 (e) was part of a legislative program designed to plug technical loopholes in § 8 (b)(4)’s general prohibition of secondary activities. In § 8 (e) Congress broadly proscribed using contractual agreements to achieve the economic coercion prohibited by § 8 (b) (4). See National Woodwork Mfrs. Assn., supra, at 634. The provisos exempting the construction and garment industries were added by the Conference Committee in an apparent compromise between the House bill, which prohibited all “hot cargo” agreements, and the Senate bill, which prohibited them only in the trucking industry.⁵ Although the garment-industry proviso was supported by detailed explanations in both Houses,⁶ the construction-industry proviso was explained only by bare references to “the pattern of collective bargaining” in the industry.⁷ It seems, however, to have been adopted as a partial substitute for an attempt to overrule this Court’s decision in NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675 (1951).⁸ Discussion of “special problems” in the construction industry, applicable to both the § 8 (e) proviso and the attempt to overrule Denver Building Trades, focused on the problems of picketing a single nonunion subcontractor on a multiemployer building project, and the close relationship between contractors and subcontractors at the jobsite.⁹ Congress limited the construction-industry proviso to that single situation, allowing subcontracting agreements only in relation to work done on a jobsite. In contrast to the latitude it provided in the garment-industry proviso, Congress did not afford construction unions an exemption from § 8 (b) (4) (B) or otherwise indicate that they were free to use subcontracting agreements as a broad organizational weapon. In keeping with these limitations, the Court has interpreted the construction-industry proviso as

“a measure designed to allow agreements pertaining to certain secondary activities on the construction site because of the close community of interests there, but to ban secondary-objective agreements concerning non jobsite work, in which respect the construction industry is no different from any other.” National Woodwork Mfrs. Assn., 386 U. S., at 638-639 (footnote omitted).

Other courts have suggested that it serves an even narrower function:

“[T]he purpose of the section 8 (e) proviso was to alleviate the frictions that may arise when union men work continuously alongside nonunion men on the same construction site.” Drivers Local 695 v. NLRB, 124 U. S. App. D. C. 93, 99, 361 F. 2d 547, 553 (1966).

See also Denver Building Trades, 341 U. S., at 692-693 (Douglas, J., dissenting); Essex County & Vicinity District Council of Carpenters v. NLRB, 332 F. 2d 636, 640 (CA3 1964).

Local 100 does not suggest that its subcontracting agreement is related to any of these policies. It does not claim to be protecting Connell’s employees from having to work alongside nonunion men. The agreement apparently was not designed to protect Local 100’s members in that regard, since it was not limited to jobsites on which they were working. Moreover, the subcontracting restriction applied only to the work Local 100’s members would perform themselves and allowed free subcontracting of all other work, thus leaving open a possibility that they would be employed alongside nonunion subcontractors. Nor was Local 100 trying to organize a nonunion subcontractor on the building project it picketed. The union admits that it sought the agreement solely as a way of pressuring mechanical subcontractors in the Dallas area to recognize it as the representative of their employees.

If we agreed with Local 100 that the construction-industry proviso authorizes subcontracting agreements with “stranger” contractors, not limited to any particular jobsite, our ruling would give construction unions an almost unlimited organizational weapon.¹⁰ The unions would be free to enlist any general contractor to bring economic pressure on nonunion subcontractors, as long as the agreement recited that it only covered work to be performed on some jobsite somewhere. The proviso’s jobsite restriction then would serve only to prohibit agreements relating to subcontractors that deliver their work complete to the jobsite.

It is highly improbable that Congress intended such a result. One of the major aims of the 1959 Act was to limit “top-down” organizing campaigns, in which unions used economic weapons to force recognition from an employer regardless of the wishes of his employees.¹¹ Congress accomplished this goal by enacting § 8 (b)(7), which restricts primary recognitional picketing, and by further tightening §8 (b)(4)(B), which prohibits the use of most secondary tactics in organizational campaigns. Construction unions are fully covered by these sections. The only special consideration given them in organizational campaigns is § 8 (f), which allows “prehire” agreements in the construction industry, but only under careful safeguards preserving workers’ rights to decline union representation. The legislative history accompanying § 8 (f) also suggests that Congress may not have intended that strikes or picketing could be used to extract prehire agreements from unwilling employers.¹²

These careful limits on the economic pressure unions may use in aid of their organizational campaigns would be undermined seriously if the proviso to § 8 (e) were construed to allow unions to seek subcontracting agreements, at large, from any general contractor vulnerable to picketing. Absent a clear indication that Congress intended to leave such a glaring loophole in its restrictions on “top-down” organizing, we are unwilling to read the construction-industry proviso as broadly as Local 100 suggests.¹³ Instead, we think its authorization extends only to agreements in the context of collective-bargaining relationships and, in light of congressional references to the Denver Building Trades problem, possibly to common-situs relationships on particular jobsites as well.¹⁴

Finally, Local 100 contends that even if the subcontracting agreement is not sanctioned by the construction-industry proviso and therefore is illegal under § 8 (e), it cannot be the basis for antitrust liability because the remedies in the NLRA are exclusive. This argument is grounded in the legislative history of the 1947 TaftHartley amendments. Congress rejected attempts to regulate secondary activities by repealing the antitrust exemptions in the Clayton and Norris-LaGuardia Acts, and created special remedies under the labor law instead.¹⁵ It made secondary activities unfair labor practices under § 8 (b)(4), and drafted'special provisions for preliminary injunctions at the suit of the NLRB and for recovery of actual damages in the district courts. § 10 (l) of the NLRA, 49 Stat. 453, as added, 61 Stat. 149, as amended, 29 U. S. C. § 160 (l), and § 303 of the Labor Management Relations Act, 61 Stat. 158, as amended, 29 U. S. C. § 187. But whatever significance this legislative choice has for antitrust suits based on those secondary activities prohibited by 18(b)(4), it has no relevance to the question whether Congress meant to preclude antitrust suits based on the “hot cargo” agreements that it outlawed in 1959. There is no legislative history in the 1959 Congress suggesting that labor-law remedies for § 8 (e) violations were intended to be exclusive, or that Congress thought allowing antitrust remedies in cases like the present one would be inconsistent with the remedial scheme of the NLRA.¹⁶

We therefore hold that this agreement, which is outside the context of a collective-bargaining relationship and not restricted to a particular jobsite, but which nonetheless obligates Connell to subcontract work only to firms that have a contract with Local 100, may be the basis of a federal antitrust suit because it has a potential for restraining competition in the business market in ways that would not follow naturally from elimination of competition over wages and working conditions.

IV

Although we hold that the union’s agreement with Connell is subject to the federal antitrust laws, it does not follow that state antitrust law may apply as well. The Court has held repeatedly that federal law pre-empts state remedies that interfere with federal labor policy or with specific provisions of the. NLRA. E. g., Motor Coach Employees v. Lockridge, 403 U. S. 274 (1971); Teamsters v. Morton, 377 U. S. 252 (1964); Teamsters v. Oliver, 358 U. S. 283 (1959).¹⁷ The use of state antitrust law to regulate union activities in aid of organization must also be pre-empted because it creates a substantial risk of conflict with policies central to federal labor law.

In this area, the accommodation between federal labor and antitrust policy is delicate. Congress and this Court have carefully tailored the antitrust statutes to avoid conflict with the labor policy favoring lawful employee organization, not only by delineating exemptions from antitrust coverage but also by adjusting the scope of the antitrust remedies themselves. See Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940). State antitrust laws generally have not been subjected to this process of accommodation. If they take account of labor goals at all, they may represent a totally different balance between labor and antitrust policies.¹⁸ Permitting state antitrust law to operate in this field could frustrate the basic federal policies favoring employee organization and allowing elimination of competition among wage earners, and interfere with the detailed system Congress has created for regulating organizational techniques.

Because employee organization is central to federal labor policy and regulation of organizational procedures is comprehensive, federal law does not admit the use of state antitrust law to regulate union activity that is closely related to organizational goals. Of course, other agreements between unions and nonlabor parties may yet be subject to state antitrust laws. See Teamsters v. Oliver, supra, at 295-297. The governing factor is the risk of conflict with the NLRA or with federal labor policy.

Y

Neither the District Court nor the Court of Appeals decided whether the agreement between Local 100 and Connell, if subject to the antitrust laws, would constitute an agreement that restrains trade within the meaning of the Sherman Act. The issue was not briefed and argued fully in this Court. Accordingly, we remand for consideration whether the agreement violated the Sherman Act.¹⁹

Reversed in part, affirmed in part, and remanded.

1

The primary effect of the agreement seems to have been to inhibit the union from offering any other employer a more favorable • contract. When asked at trial whether another subcontractor could get an agreement on any different terms, Local 100’s business agent answered:

“No. The agreement says that no one will be given a more favorable agreement. I couldn’t, if I desired, as an agent, sign an agreement other than the ones in existence between the local contractors and the Local 100.

“Q. I see. So that’s — in other words, once you sign that contract with the Mechanical Contractors’ Association, that sets the only type of agreement which your Union can enter into with any other mechanical contractors; is that correct, sir?

“A. That is true.” Tr. 45-46.

2

There was no evidence that Local 100’s organizing campaign was connected with any agreement with members of the multiemployer bargaining unit, and the only evidence of agreement among those subcontractors was the “most favored nation” clause in the collective-bargaining agreement. In fact, Connell has not argued the case on a theory of conspiracy between the union and unionized subcontractors. It has simply relied on the multiemployer agreement as a factor enhancing the restraint of trade implicit in the subcontracting agreement it signed.

3

Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 684-688 (1965) (opinion of White, J.); id., at 710 n. 18 (opinion of Goldberg, J.); cf. Vaca v. Sipes, 386 U. S. 171, 176-188 (1967); Smith v. Evening News Assn., 371 U. S. 195 (1962).

4

Section 8 (e) provides:

“It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection and subsection (b)[(4)(B)] of this section the terms ‘any employer,’ ‘any person engaged in commerce or an industry affecting commerce,’ and ‘any person’ when used in-relation to the terms ‘any other producer, processor, or manufacturer,’ 'any other employer,’ or ‘any other person’ shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this subchapter shall prohibit the enforcement of any agreement which is within the foregoing exception.” 29 U. S. C. §158 (e).

5

See H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39-40 (1959).

6

105 Cong. Rec. 17327 (1959) (remarks by Sen. Kennedy); id., at 17381 (remarks by Sens. Javits and Goldwater); id., at 15539 (memorandum by Reps. Thompson and Udall); id., at 16590 (memorandum by Sen. Kennedy and Rep. Thompson). These debates are reproduced in 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 1377, 1385, 1576, 1708 (1959) (hereinafter Leg. Hist, of LMRDA).

7

105 Coug. Rec. 17899 (1959) (remarks by Sen. Kennedy); id., at 18134 (remarks by Rep. Thompson); 2 Leg. Hist, of LMRDA 1432, 1721.

8

President Eisenhower’s message to Congress reconunending labor reform legislation urged amendment of the secondary-boycott provisions to permit secondary activity “under certain circumstances, against secondary employers engaged in work at a common construction site with the primary employer.” S. Doc. No. 10, 86th Cong., 1st Sess., 3 (1959) (emphasis added). Various bills introduced in both Houses included such provisions, see 2 Leg. Hist, of LMRDA 1912-1915, but neither the bill that passed the Senate nor the one that passed the House contained a Denver Building Trades provision. The Conference Committee proposed to include such an amendment to § 8 (b) (4) (B) in the Conference agreement, along with a closely linked construction-industry exemption from §8 (e). 105 Cong. Rec. 17333 (1959) (proposed Senate resolution), 2 Leg. Hist, of LMRDA 1383. But a parliamentary obstacle killed the § 8 (b) (4) (B) amendment, and only the § 8 (e) proviso survived. See 105 Cong. Rec. 17728-17729, 17901-17903, 2 Leg. Hist, of LMRDA 1397-1398, 1434-1436. References to the proviso suggest that the Committee may have intended the § 8 (e) proviso simply to preserve the status quo under Carpenters v. NLRB (Sand Door), 357 U. S. 93 (195S), pending action on the Denver Building Trades problem in the following session. See H. R. Rep. No. 1147, supra, n. 5, at 39-40; 105 Cong. Rec. 17900 (1959) (report of Sen. Kennedy on Conference agreement), 2 Leg. Hist, of LMRDA 1433. Although Senator Kennedy introduced a bill to amend §8 (b)(4), S. 2643, 86th Cong., 1st Séss. (1959), it was never reported out of committee.

9

See 105 Cong. Rec. 17881 (1959) (remarks by Sen. Morse); id., at 15541 (memorandum by Reps. Thompson and Udall); id., at 15551-15552 (memorandum by Sen. Elliott); id., at 15852 (remarks by Rep. Goodell); see also id., at 20004-20005 (post-legislative remarks by Rep. Kearns); 2 Leg. Hist, of LMRDA 1425, 1577, 1588, 1684, and 1861.

10

Local 100 contends, unsoundly we think, that the NLRB has decided this issue in its favor. It cites Los Angeles Building & Construction Trades Council (B & J Investment Co.), 214 N. L. R. B. No. 86, 87 L. R. R. M. 1424 (1974), and a memorandum from the General Counsel explaining his decision not to file unfair labor practice charges in a similar case, Plumbers Local 100 (Hagler Construction Co.), No. 16-CC-447 (May 1, 1974). In B & J Investment the Board approved, without comment, an administrative law judge’s conclusion that the § 8 (e) proviso authorized a subcontracting agreement between the Council and a general contractor who used none of his own employees in the particular construction project. The agreement in question may have been a prehire contract under § 8 (f), and it is not clear that the contractor argued that it was invalid for lack of a collective-bargaining relationship. The General Counsel’s memorandum in Hagler Construction is plainly addressed to a different argument — that a subcontracting clause should be allowed only if there is a pre-existing collective-bargaining relationship with the general contractor or if the general contractor has employees who perform the kind of work covered by the agreement.

11

105 Cong. Rec. 6428-6429 (1959) (remarks of Sen. Goldwater); id., at 6648-6649 (remarks of Sen. McClellan); id., at 6664-6665 (remarks of Sen. Goldwater); id., at 14348 (memorandum of Rep. Griffin); 2 Leg. Hist, of LMRDA 1079, 1175-1176, 1191-1192, 1523.

12

H. R. Rep. No. 1147, supra, n. 5, at 42; 105 Cong. Rec. 10104 (1959) (memorandum of Sen. Goldwater); id., at 18128 (remarks by Rep. Barden); 2 Leg. Hist, of LMRDA 1289, 1715. The NLRB has taken this view. Operating Engineers Local 51$, 142 N. L. R. B. 1132 (1963), enforced, 331 F. 2d 99 (CA3), cert. denied, 379 U. S. 889 (1964).

13

As noted above, supra, at 628-630, the garment-industry proviso reflects different considerations. The text of the proviso and the treatment in congressional debates and reports suggest that Congress intended to authorize garment workers’ unions to continue using subcontracting agreements as an organizational weapon. See Danielson v. Joint Board, 494 F. 2d 1230 (CA2 1974) (Friendly, J.).

14

Connell also has argued that the subcontracting agreement was subject to antitrust sanctions because the construction-industry proviso authorizes only voluntary agreements. The foundation of this argument is a contention that § 8 (b) (4) (B) forbids picketing to secure an otherwise lawful “hot cargo” agreement in the construction industry. Because we hold that the agreement in this case is outside the § 8 (e) proviso, it is unnecessary to consider this alternative contention.

15

See H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. (House Managers’ statement), 65-67 (1947); 93 Cong. Rec. 4757, 4770, 4834-4874 (1947) (debates over Sen. Ball’s proposal for antitrust sanctions and Sen. Taft’s compromise proposal for actual damages, which became § 303 of the NLRA).

16

The dissenting opinion of Mr. Justice Stewart argues that § 303 provides the exclusive remedy for violations of § 8 (e), thereby precluding recourse to antitrust remedies. For that proposition the dissenting opinion relies upon “considerable evidence in the legislative materials.” Post, at 650. In our view, these materials are unpersuasive. In the first place, Congress did not amend § 303 expressly to provide a remedy for violations of § 8 (e). See Labor-Management Reporting and Disclosure Act of 1959, §§ 704 (d), (e), 73 Stat. 544-545. The House in 1959 did reject proposals by Representatives Hiestand, Alger, and Hoffman to repeal labor’s antitrust immunity. Post, at 650-654. Those proposals, however, were much broader than the issue in this case. The Hiestand-Alger proposal would have repealed antitrust immunity for any action in concert by two or more labor organizations. The Hoffman proposal apparently intended to repeal labor’s antitrust immunity entirely. That the Congress rejected these extravagant proposals hardly furnishes proof that it intended to extend labor’s antitrust immunity to include agreements with nonlabor parties, or that it thought antitrust liability under the existing statutes would be inconsistent with the NLRA. The bill introduced by Senator McClellan two years later provides even less support for that proposition. Like most bills introduced in Congress, it never reached a vote.

17

In most cases a decision that state law is pre-empted leaves the parties with recourse only to the federal labor law, as enforced by the NLRB. See Motor Coach Employees v. Lockridge, 403 U. S. 274 (1971); San Diego Building Trades Council v. Garmon, 369 U. S. 236 (1959). But in cases like this one, where there is an independent federal remedy that is consistent with the NLRA, the parties may have a choice of federal remedies. Cf. Vaca v. Sipes, 386 U. S. 171, 176-188 (1967); Smith v. Evening News Assn., 371 U. S. 195 (1962).

18

Texas law is a good example. Texas Rev. Civ. Stat. Ann., Arts. 5152 and 5153 (1971), declare that it is lawful for workers to associate in unions and to induce other persons to accept or reject employment. Article 5154, however, referring to the preceding articles, provides: “Nothing herein shall be construed to repeal, affect or dimmish the force and effect of any statute now existing on the subject of trusts, conspiracies against trade, pools and monopolies.” The Texas antitrust statutes prohibit, among other specified agreements, trusts, and monopolies, any combination of two or more persons to restrict “the free pursuit of a lawful business.” Tex. Bus. & Comm. Code §§ 15.02-15.04 (1968).

19

In addition to seeking a declaratory judgment that the agreement with Local 100 violated the antitrust laws, Connell sought a permanent injunction against further picketing to coerce execution of the contract in litigation. Connell obtained a temporary restraining order against the picketing on January 21, 1971, and thereafter executed the contract — under protest — with Local 100 on March 28, 1971. So far as the record in this case reveals, there has been no further picketing ai Connell’s construction sites. Accordingly, there is no occasion for us to consider whether the NorrisLaGuardia Act forbids such an injunction where the specific agreement sought by the union is illegal, or to determine whether, within the meaning of the Norris-LaGuardia Act, there was a “labor dispute” between these parties. If the Norris-LaGuardia Act were applicable to this picketing, injunctive relief would not be available under the antitrust laws. See United States v. Hutcheson, 312 U. S. 219 (1941). If the agreement in question is held on remand to be invalid under federal antitrust laws, we cannot anticipate that Local 100 will resume picketing to obtain or enforce an illegal agreement.