(concurring):
I concur in Part III of the Court’s opinion, in the bulk of its reasoning and in its judgment that the Board’s “right to control” test is inconsistent with National Woodwork Manufacturing Association v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). My path to this conclusion makes it unnecessary for me to consider certain issues raised by the Board in its argument1 and considered in the Court’s opinion.
I.
The central dilemma presented by § 8(b)(4) is well known and needs no extended recital. The section purports to prohibit any inducement to force an employer “to cease doing business with any other person.”2 However, the objectives of every strike or job action “include a desire to influence others from withholding from the employer their services or trade.” 3 The union by striking always wants to completely shut down the employer and cause the economic injury pursuant to that shut down. Similarly, the union is surely aware and must intend that those who are cut off from the employer’s services by the strike will also be injured and that injury might well create a climate in which the union’s demands will be met. For example, in a strike of the trucking industry, the hardest hit will be not the trucking industry but the producers of perishable commodities. The union surely intends that and surely expects that injury to help its cause. The strike weapon is not a mere contrivance of the courts nor is it permitted through legislative inaction. The strike weapon is explicitly preserved by Sections 7 and 13 of the NLRA. More than this, that weapon forms the base for the system of *246private ordering the NLRA promotes.4 To forbid the use of this weapon or permit a reduction of its effectiveness without explicit legislative approval would radically shift the balance of advantage struck by Congress between union economic power and employer economic power. Courts were and are naturally hesitant to alter that balance and thus, with the Labor Board, sought to accommodate the right to strike with the prohibition on secondary boycotts.
The accommodation between Sections 7 and 13 and Section 8(b)(4) which the Board urges upon us focuses on the union’s “secondary intent.” If a union has an “intent” to achieve the secondary effects occasioned by its strike otherwise protected by Sections 7 and 13, then it follows that the union has engaged in a § 8(b)(4) “secondary boycott.” If the union does not intend to achieve those effects but rather seeks only to achieve effects on the primary employer, then the strike is “primary” and not violative of § 8(b)(4). In the Board’s words: “While not prohibiting ‘the incidental effects of traditional primary activity,’ Congress by Section 8(b)(4)(B) has ‘barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer when in fact the activity directed against him was carried on for its effect elsewhere.’ ... If a ‘tactical object’ of the union’s conduct is a person other than the employer of the boycotting employees, the ‘boycott [is] secondary in its aim.’ ” 5
A moment’s reflection will suggest the difficulty with this formulation. The union surely intends the secondary effects of all strikes. That secondary effect is part, indeed, in some cases the only operative part of the strike weapon. This observation, rejoins the Board, citing dicta in Denver Building and Trades,6 proves it is correct here in finding Local 638’s activity was secondary, since “an object” (the precise statutory phrase of § 8(b)(4) of Local 638’s job action was to put pressure on the general contractor through a strike of its own employer, the “secondary”, to force it to terminate business with the general. The obvious response is that this reasoning taken literally would outlaw all strikes, exactly what the “union intent” accommodation seemingly was designed to prevent. A union always intends that employers other than the immediate employer will be pressured by its strikes or job actions.
The Board attempts to limit the far reaching effect of its reasoning by applying it only when the primary employer has no “right to control” assignment of disputed work in work preservation controversies. The Board argues that in this limited situation it can reasonably presume that the union’s economic pressure on the primary employer is intended to particularly affect the employer who does have the right to control assignment of the disputed work. The union’s object must then be to pressure the employer who does have this right to control to satisfy the union’s objective. *247This formulation essentially limits the Board’s reasoning to the construction industry.7 The Board asks us to accept this reasoning as based upon its expertise in ascertaining union objectives and evaluating union conduct.
But can the Board’s reasoning be limited to situations in which the struck employer has no right to control the disputed work? Assume the immediate employer does have the right to control assignment of the work. A strike to force him to exercise that discretion, i. e. change his purchasing policies, to assign the work to his employees has exactly the same effect as a strike to force him to stop doing business with an individual who, in the situation in which the immediate employer has no right to control, would have the discretion to assign the work to the disputing employees. We have consistently held that a strike to force a termination of business is no different from a strike to force a change in purchasing policies;8 the language of the statute and common sense clearly support that view.9
If the secondary effects of a strike of or job action against a primary employer are equal when the employer has right to control and when he does not have right to control, why is it that the union does not “intend” the secondary effects in the first situation but does in the second? Surely, the Board will not be heard to argue that since the primary employer can legally “satisfy” the union’s demand in the first situation, the presumption as to “intent” is not applicable. The employer who has no right to control can also legally satisfy the union’s demand by terminating the offending contract or paying off the union for its lost wages. Similarly, as the general contractor in the non-right to control situation can satisfy the union’s demands by changing his own purchasing policies, so the manufacturer in the right to control situation can satisfy the union demands by constructing heating and cooling units such that threading and fitting is done on the job or by going out of business.
To this argument, I take it, the Board’s only possible response is that its experience with union actions in the construction industry convince it that (a.) the union is unconcerned with any secondary effect on a manufacturer, when the union’s employer can assign it the work in dispute, but (b.) is specially and vitally concerned with the secondary effect on an employer who could assign the disputed work to the union. But surely the Board does not argue that the union does not intend that the manufacturer feel no effects of economic pressure on a right to control employer; nor by its own admission in this case does it argue that the union is specifically seeking to bargain with an employer who *248does have the right to control when the union’s immediate employer does not. It is difficult to perceive how the Board’s gradation of union intent can serve as any kind of a rational or definitive standard to distinguish a § 8(b)(4) violation: in both cases the union “intends” the secondary effect and surely makes use of that effect to gain its objective. It may be in other industries that the secondary effects of a strike are less important to a union than in, for example, the trucking industry. Does that make strikes in the trucking industry “secondary” and strikes in other industries “primary”? In any event, the Board has presented us with no record that unions in the construction industry are particularly inclined to manipulate the secondary effects of their primary strikes more in a non-right to control situation than in a right to control situation. Such a conclusion is not intuitively obvious to me: my own suspicion is that the unions intend to force everybody, everywhere to recognize their right to traditional jobs and if a strike of their primary employer pinches some other entity which is ignoring the union’s “right” then so much the better from the union’s point of view. Thus, I am unwilling to rely on the Board’s conclusory allegations of expertise when the illogic of its position is not overcome by a record supportive of that position. In these circumstances, I cannot conclude that the Board has successfully demonstrated that there is any distinction between the union’s intent in situations in which the immediate employer has the right to control and the situation in which that employer does not.
My conclusion in this regard is buttressed by another consideration. Clearly, a union strike over failure to agree to an increase in wages or failure to comply with such an agreement does not become secondary activity simply because the employer’s ability to pay is practically dependent on the price he himself receives from a third party. Yet only the third party has the “right to control” resolution of the dispute and thus, under the Board’s reasoning, the immediate employer is a “secondary.” The Board seeks to avoid this intuitively absurd result by stating that the inability to satisfy union demands must be “legal” not “practical”10 in order to support the right to control test. But what principles support this distinction? One searches in vain. Indeed, the distinction between “practical” and “legal” power, never the most obvious of distinctions in the non-legal world, is attenuated to the point of disappearance when, as here, the “legal” inability of the immediate employer is caused by his own “practical” estimations as to the profit in entering a subcontract in derogation of his work preservation agreement. If the union decides, as an employer might well importune it to decide, to agree to a monetary settlement in lieu of compliance with the work preservation agreement, the immediate employer may find it necessary to seek aid from the general contractor in order to get the job moving. Can the Board really distinguish between “practical” and “legal” control over a labor dispute?
If the Board’s presumption of secondary intent when the employer has no right to control is extended to situations in which the employer does have the right to control — as, in logic, it must be extended, as discussed above — the right to control presumption becomes not an accommodation between § 8(b)(4) and §§ 7 and 13 but rather an administrative repeal of the right to strike.11 The *249Chamber of Commerce in its amicus brief quite unabashedly presses upon us that contention; job site strikes over work preservation issues should be outlawed because of their disruptive effect, While I must commend the Chamber for its honesty of presentation, its argument was over-ruled in the most explicit terms in National Woodwork12 and upon reflection is really no more than the old, discredited contention bandied about in the days prior to the Norris-LaGuardia Act. Accepting the Chamber’s position would re-introduce the labor injunction through the fragile vehicle of § 8(b)(4) and § 10(7). It is simply incomprehensible that Congress would intend such a result without altering Norris-LaGuardia or Sections 7 and 13; in any event, I for one would not bring back the doctrine of Coronado (II) and Bedford Cut Stone13 *250without the most explicit Congressional statement that such was demanded by dictates of sound economic policy. Finally, the Board’s right to control test must be rejected because the Supreme Court in National Woodwork expressly held that the union could use economic pressure for work preservation against an immediate employer who does have the right to control. As discussed above, there is no distinction between economic pressure against an immediate employer who does have the right to control and one who does not that is relevant to the purposes of § 8(b)(4). Therefore, National Woodwork requires us to reverse the Board’s action as arbitrary and as inconsistent with the Act.14
II.
Having said all this, I think it appropriate to make some brief remarks about what is proscribed by § 8(b)(4). That is not an easy task since the 80th Congress which passed that provision did not specify what the provision was meant to outlaw. All who read the Section agree it can not be taken literally. All who know the history of the Taft-Hartley Act realize that Congress surely meant to outlaw something that unions were engaged in. The project for the courts and the Board has been to formulate the scope of § 8(b)(4)’s proscription. It is instructive to consider the two areas in which the Board and the courts have with some exactitude delineated the scope of § 8(b)(4).
The first area involves those cases in which the union directly seeks to obtain a concession for a specific group of employees from an employer with whom it has no bargaining relationship under the NLRA relating to those specific employees.15 An example would be where a union pickets an employer with whom it has no collective bargaining agreement to prevent that employer from doing something that would affect the union. In such cases the union is in effect seeking to bargain with the third-party employer. When § 8(b)(4)’s proscription is stated in those terms, it is easily reconciled with the NLRA and particularly the Taft-Hartley Act as a whole. Such an attempt by the union to bargain with an employer, with whom it has no collective bargaining relationship in relation to the affected employees, would conflict with the policy of the Act of free choice for the actual employees of the employer so importtmed as to whether they wish to be represented by a union; would conflict with the employer’s actual or potential duty to bargain with his own employees; and could conflict with the union’s concomitant duty to represent those employees. The employer may thus be *251forced to bargain with two unions and the union who seeks to force bargaining must represent two work forces, which may or may not have conflicting interests.16 The interloper union thus finds no protection in the Act for his bargaining. Indeed, one could construe such a bargaining attempt as a petition for recognition which is itself illegal unless done in conformity with the rather specific provisions of the Act governing recognitional activity.17
These same general policies of the Act may also explain the other area in which the courts and Board have reached agreement on the scope of § 8(b)(4) — any union attempts to obtain from its immediate employer an agreement to or practise of refusing to handle non-union goods or to work on jobs where non-union workers will» be present violate § 8(b)(4).18 Professor Lesnick criticizes these cases because they are insensitive to the subtleties of “union intent.”19 However, that criticism ignores what I perceive to be the real import of this rule. A union objective to promote unionization or for “aesthetic” reasons to refuse to handle non-union goods even if directed solely at the primary employer (although I would argue no union objective ever is in intent) is not protected by the Act since the Act is neutral toward unionization and affirmatively seeks to protect employee freedom of choice in deciding upon union representation. The union’s objective, not its “intent” to make tactical use of secondary effects, is illegal and “secondary” as a matter of law.
The relation of the proscription of § 8(b)(4) to the general policies of TaftHartley and the NLRA provides a more firm structure to the secondary boycott provisions, one more easily complied with and one more readily administered. It furthermore has the salutory effect of enhancing Congress’ role as the ultimate arbiter of union power and employer power in the collective bargaining process. With attention thus directed to the substantive desirability of the union’s *252bargaining objective, Congress may with the issue so framed give full consideration to the desirability of that objective in balance with its adverse secondary effects. On the other hand, if courts and the Board continue to focus on “union intent”, Congress may be deterred from intervention by the heavily factual nature of the inquiry. The energies of management and labor will be spent on subtle questions of evidence while the central questions of the desirability of the objective as against its adverse effects will be submerged in judicial consideration of evidentiary presumptions such as the “right to control.” A better institutional position for appellate courts is as a structuring agent, promoting rationalization and consistency in labor policy, and thereby framing issues for legislative and administrative consideration. The history of legislative-judicial-administrative dialogue is most impressive in those situations in which the judiciary considers the legality of a particular bargaining objective after the parties and the Labor Board have formulated the issue and either applies existing legislative policy to that objective or in effect “remands” the issue to Congress for action.20 Finally, a relation of the proscription of § 8(b)(4) to the policies of the Taft-Hartley Act is probably the best approximation of the true intent of the 80th Congress in passing § 8(b)(4) while leaving Sections 7 and 13, not to mention Norris-LaGuardia, unscathed.21
*253As to the result in this case, I concur in Part III of the Court’s opinion which establishes that if the union is striking its employer over the violation of a lawful collective bargaining agreement, the union may not be found in violation of § 8(b)(4) unless the objects listed in footnote 44 taint the union’s strike. While I am less convinced than the majority that the Board deserves another opportunity to determine whether any of those objects tainted Local 638’s strike, I concur in its reasoned judgment that a remand is the proper disposition at this time.22
. See Brief for the NLRB at 8-10. This question pertains to the effect of a subsidiary holding in Denver Bldg. & Construe. Trades Council v. NLRB, 341 U.S. 675, 689-90, 71 S.Ct. 943, 95 L.Ed. 1284 (1951) on the situation sub judice.
. National Labor Relations Act § 8(b)(4)(ii)(B), 29 U.S.C. § 158(b)(4)(ii)(B) (1970).
. Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 673, 81 S.Ct. 1285, 1289, 6 L.Ed.2d 592 (1961) (Frankfurter, J.). For this reason the oft-cited language in S.Rep.No.105, 80th *246Cong., 1st Sess. 22 (1947) is hopelessly conclusory.
.See, National Woodwork Manuf. Ass’n v. NLRB, 386 U.S. 612, 640-43, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967); NLRB v. Erie Resistor Corp., 373 U.S. 221, 234-35, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963); NLRB v. Insurance Agents’ Int’l Union, 361 U.S. 477, 490, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); N. Chamberlain & J. Kuhn, Collective Bargaining 391 (2d ed. 1965). Cf. American Radio Ass’n v. Mobile Steamship Ass’n, 419 U.S. 215, 95 S.Ct. 409, 424, 42 L.Ed.2d 399 (1974) (Stewart, J., dissenting), quoting Local 20, Teamsters v. Morton, 377 U.S. 252, 260, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964).
. Brief for the NLRB, at 7 citing National Woodwork Manuf. Ass’n v. NLRB, 386 U.S. 612, 632, 645, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). See Lesnick, Job Security and Secondary Boycotts, 113 U.Pa.L.Rev. 1000, 1015-18 (1965) for a leading academic formulation of the “union intent” test.
. Denver Bldg. & Construe. Trades Council v. NLRB, 341 U.S. 675, 688, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). Of course, the Court is quite correct in noting on pages 238-239 of 172 U.S.App.D.C., on pages 898-899 of 521 F.2d that the Board has cavalierly lifted this dictum from its context. The literal import of the dictum is thus of absolutely no aid in resolving the issues presented in this case.
. The Board seems unaware of this fact and of the serious problems such an approach raises in terms of the over-all equity of the NLRA. It is largely for this reason that I would, if I were writing on a clean slate, adopt the views of Judge Fahy stated in Denver Bldg. & Construe. Trades Council v. NLRB, 87 U.S.App.D.C. 293, 186 F.2d 326, 335-37 (1950), rev’d, 341 U.S. 675, 689-90, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). Judge Fahy’s opinion would accommodate the peculiar structure of the construction industry to the intendment of § 8(b)(4). See also note 20 infra.
. See, e. g., Local 5, Plumbers & Pipefitters v. NLRB, 116 U.S.App.D.C. 100, 321 F.2d 366, 369 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1964).
. See National Labor Relations Act § 8(b)(4)(ii)(B), 29 U.S.C. § 158(b)(4)(ii)(B) (1970): “ . . . forcing or requiring any person to cease . . . handling . the products of any other . . . manufacturer . . . .”
For this reason the statement in H.R.Rep.No. 245, 80th Cong., 1st Sess. 23 (1947), cited by the Brief for the NLRB at 9-10 n. 5 and relied upon in Local 419, Carpet Layers v. NLRB, 151 U.S.App.D.C. 338, 467 F.2d 392, 397 (1972), is not helpful in resolving the issues of this case. That statement is that Congress meant to protect employers who are “powerless to comply with demands giving rise to [secondary] activity. . . . ” However, even if we were to assume that Hudik-Ross is a secondary, it certainly can comply with the union’s demand by terminating business with Austin, just as a right to control employer can comply by altering his purchasing policies.
. See Local 1694, ILA (Bd. of Harbor Comm’rs), 137 N.L.R.B. 1178, 1182-83 (1962), aff’d, 331 F.2d 712 (3d Cir. 1965). Cf. Local 438, Plumbers & Pipefitters (George Koch Sons), 201 N.L.R.B. 59, 62 (1973), aff'd, 490 F.2d 323 (4th Cir. 1973).
. The Board is apparently waffling on the question of whether the union may strike the general contractor who in circumstances as those sub judice has the right to control. It first held that the union did have that right but the 9th Circuit rejected that holding on appeal. See Western Monolithics Concrete Prod., Inc. v. NLRB, 446 F.2d 522 (9th Cir. 1971). This Board position apparently motivated the refusal to issue a complaint in Connell Construc. Co. v. Local 100, Plumbers & Steamfitters, 421 *249U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975), rev’g, 483 F.2d 1154, 1158 (5th Cir. 1973) and was implicitly rejected by the Supreme Court’s holding. The Board’s apparent position seems manifestly inconsistent with the Act, see 172 U.S.App.D.C. pp. 232-233, 521 F.2d pp. 892-893 infra, and, as the Court notes in note 29, would seem to expand rather than contract the scope of labor disputes in contravention of the stated goal of § 8(b)(4). Thus, we are forced to the conclusion that when the immediate employer has no right to control, the union is deprived of the right to strike. This cannot be squared with Sections 7 and 13.
The Board offers solace to the union by stating that the union may enforce its contractual agreement with its immediate employer in a § 301 suit. See Local 438, Plumbers & Pipefitters (George Koch Sons), 201 N.L.R.B. 59, 63 (1973), aff'd, 490 F.2d 323 (4th Cir. 1973). Thus, the Board implies that the scope of § 8(b)(4) is broader than that of § 8(e). The Court in note 38 correctly notes that both the majority and dissent in National Woodwork held that § 8(b)(4) and 8(e) were to be construed in pari passu. Furthermore, the Board’s position raises the intriguing question of whether the union may strike to require the immediate employer to pay damages for violating the concededly valid work preservation agreement. The only minimal rationality to the Board’s position is provided by our recent holding in Local 223, Sheet Metal Workers v. NLRB, 162 U.S.App.D.C. 145, 498 F.2d 687 (1974) which held that the validity of a work preservation agreement could only be determined at its inception. The Board could argue that since the work preservation agreement is valid and a later specific secondary intent could not void it, the courts should permit § 8(b)(4) findings in such situations to preserve the intent of § 8(b)(4). The most obvious response is that Judge Wilkey’s opinion for the Court in Local 223 does not hold that an agreement originally valid under § 8(e) may be enforced in all circumstances, only that the agreement itself cannot be voided because of one incident of secondary intent in enforcing that agreement. I conclude, as does the Court, that the Board must either completely outlaw the union’s action or completely protect it. The Board is not authorized to initiate under §§ 8(b)(4) and 8(e) a compulsory arbitration scheme for the construction industry. That is a project for management and labor to resolve in collective bargaining. The Board’s implied response that § 8(e)’s construction industry proviso should cover disputes of the sort we confront in this case must be rejected. See note 22 infra.
While the Board does not explicitly make the argument, one could argue that the principle of Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) should permit the Board to extend the compulsory arbitration schemes specifically approved in §§ 8(b)(4)(ii)(D), 10(k), 29 U.S.C. §§ 158(b)(4)(ii)(D), 160(k) (1970) (compulsory arbitration of work assignment and jurisdictional disputes) and in the construction industry proviso to § 8(e) (union and employer may agree to hot cargo clause but the clause may not be enforced through a strike if the subject of the agreement relates to job site work) to the facts of this case. I am not impressed with this potential argument since it restricts the right to strike by implication. Such restriction was permitted in Lucas Flour because of the union’s own agreement to a plenary arbitration scheme. There is no such agreement in this case. See Wellington & Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson, 72 Yale L.J. 1547 (1963). See also Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 388, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974) (Douglas, J., dissenting); Banyard v. NLRB, 164 U.S.App.D.C. 235, 505 F.2d 342 (1974).
. National Woodwork Manuf. Ass'n v. NLRB, 386 U.S. 612, 644, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).
. See Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963 (1925); Bedford Cut Stone Co. v. Journeymen Stone Cutters Ass’n, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916 (1927). See generally Winter, Collectively Bargaining and Competition: The Application of Anti-trust Standards to Union Activities, 73 Yale L.J. 14 (1963); note 21 infra.
. The sort of judicial review of administrative action involved in this case is not really a direct ruling on a “question of law”; nor is it a ruling on a matter outside of the agency’s expertise. Rather it is a ruling that the agency in exercising its expertise in an area of mixed facts and law did not act reasonably in developing a rational interpretation of the Act. This form of judicial review is largely supervisory and should be sparingly used. Cf. Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 672-74, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961).
. See NLRB v. Local 825, Operating Eng'rs, 400 U.S. 297, 303-04, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971); Local 814, Teamsters v. NLRB, 167 U.S.App.D.C. 387, 512 F.2d 564 (1975); Local 419, Carpet Layers v. NLRB, 151 U.S. App.D.C. 338, 467 F.2d 392 (1972); Local 1288, Retail Clerks v. NLRB, 129 U.S.App.D.C. 92, 390 F.2d 858 (1968). Cf. Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 674-79, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961); Connell Construc. Co. v. Local 100, Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). See also American Radio Ass’n v. Mobile Steamship Ass’n, 419 U.S. 215, 95 S.Ct. 409, 420-21, 42 L.Ed.2d 399 (1974) (Stewart, J., dissenting). The Court in note 44 recognizes this rule. Compare this rule with United Mine Workers v. Pennington, 381 U.S. 657, 665-66, 85 S.Ct. 1585, 1591, 14 L.Ed.2d 626 (1965):
But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. . . . [T]here is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units . . .. On the contrary, the duty to bargain unit by unit leads to a quite different conclusion, (emphasis added)
. Cf. United Mine Workers v. Pennington, 381 U.S. 657, 665-66, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Local 419, Carpet Layers v. NLRB, 151 U.S.App.D.C. 338, 467 F.2d 392, 406-07 (1972); Sperry Systems Mgmt. Div. v. NLRB, 492 F.2d 63, 69 (2d Cir.), cert. denied, sub nom., Local 445, Electrical Workers v. Sperry Systems Mgmt. Div., 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974). The one exception to this rule is the “allied employer” doctrine, see cases cited 467 F.2d at 401 n.20, which the Board seemingly recognizes as a limitation on its “right to control” rule. See Painters Dist. Council No. 20, 185 N.L.R.B. 930, 932 (1970).
. National Labor Relations Act § 8(b)(7), 29 U.S.C. § 158(b)(7) (1970); see San Francisco Local Jt. Exec. Bd., Culinary Workers v. NLRB, 163 U.S.App.D.C. 234, 501 F.2d 794 (1974); Note Recognitional and Organizational Picketing: Limitations on A Non-Certified Union, 47 Minn.L.Rev. 1031 (1963). Of course, if the union does not represent a majority of the relevant employees, any bargaining would violate § 8(a)(2), 29 U.S.C. § 158(a)(2) (1970). Compare Dallas Building Trades v. NLRB, 130 U.S.App.D.C. 28, 396 F.2d 677 (1968).
. Washington-Oregon Shingle Weavers Dist. Council, 101 N.L.R.B. 1159 (1952), aff’d, 211 F.2d 149 (9th Cir. 1954); see Denver Bldg. & Construe. Trades Council v. NLRB, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). See also Local 636, Plumbers & Pipefitters (I) v. NLRB, 108 U.S.App.D.C. 24, 278 F.2d 858 (1960); Marriott Corp. v. NLRB, 491 F.2d 367 (9th Cir.), cert. denied sub nom. International Ass’n of Machinists v. NLRB, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974); Local 1976, Carpenters, 113 N.L.R.B. 1210 (1955), aff’d, 241 F.2d 147 (9th Cir. 1957) aff’d on narrow issue, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). The distinction between union signatory agreements such as discussed in the text and union standards agreements such as are in issue in this case has often been recognized by this Court. See Orange Belt Dist. Council No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534, 538-39 (1964) and cases cited. See also Local 24, Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959). The Board’s reliance on Local 5, Plumbers & Pipefitters, 116 U.S.App.D.C. 100, 321 F.2d 366 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1964) is misplaced since that case involved a jurisdictional dispute between unions, which is substantially similar to a union signatory dispute. Cf. NLRA §§ 8(b)(4)(ii)(D); 10(k), 29 U.S.C. §§ 158(b)(4)(ii)(D); 160(k) (1970). See also NLRB v. Local 825, Operating Eng’rs, 400 U.S. 297, 305-06, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971).
.Lesnick, supra note 5, at 1004-06. *254participate in the job action. I have not fully explored whether the reasoning applied to § 8(b)(4)(ii)(B) should apply exactly to § 8(b)(4)(i).
. Cf. Bickel & Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv.L.Rev. 1 (1957).
Congress when confronted with properly framed issues may take two approaches. First, it may directly restrict union economic power when used in pursuit of a particular bargaining objective. See §§ 8(b)(4)(ii)(D); 10(k), 29 U.S.C. §§ 158(b)(4)(ii)(D); 160(k) (1970) (compulsory arbitration over work assignment and jurisdictional disputes); § 8(b)(7), 29 U.S.C. § 158(b)(7) (1970) (time limitation for organizational picketing and the right to have a Board regulated election); § 8(b)(1), (2), 29 U.S.C. § 158(b)(1), (2) (1970) (limitations of union security objectives); and the provisos to § 8(e), 29 U.S.C. § 158(e) (1970) (union may bargain for agreement not to handle non-union goods or work with nonunion workmen but may not strike to enforce such an agreement).
Second, Congress may take steps to mitigate the more harsh effects of union economic power. See, e. g., National Labor Relations Act § 208, 29 U.S.C. § 178 (1970); Railway Labor Act, 45 U.S.C. §§ 154-63, 183-85 (1970); C. Summers & H. Wellington, Labor Law 845-883 (1968).
The “institutional” view of the role of the courts suggested in the text would also seem to mitigate the difficulties of judicial application of the stated purpose of § 8(b)(4) — the protection of “neutral” third parties. See, e. g., National Woodwork Manuf. Ass’n v. NLRB, 386 U.S. 612, 627-28, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). These difficulties are illustrated by this case. The Board finds injury to neutral third parties in this case involving a small construction job in Brooklyn and proscribes that injury through § 8(b)(4). However, the Board would not and under current law could not redress through § 8(b)(4) the very real injury to neutral third parties caused by a nationwide truckers strike or a local public employees strike. When one compares the relative seriousness of the injuries to neutral third parties, one must certainly pause to consider whether judicial effort to control secondary effects through § 8(b)(4) is a fruitless if not Sisyphisean task. The inherent inequity in this task is made doubly obvious in “Right to Control” work preservation disputes since construction unions are the only apparent object of § 8(b)(4) in such circumstances due to the peculiar structure of the industry. See note 7 supra.
. Cf. National Labor Relations Act § 7, 29 U.S.C. § 157 (1970) (“Employees . . . shall also have the right to refrain from” collective bargaining); §§ 8(a)(1), (b)(1), 14(b), 29 U.S.C. §§ 158(a)(1), (b)(1), 164(b) (1970). See also International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); notes 9 & 20 supra.
Another advantage of the view of § 8(b)(4) enunciated in the text is its correlation with anti-trust doctrine. This correlation has already been suggested in note 15 supra. It may also be seen in a comparison of Local 189, Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965); American Fed’n of Musicians v. Carrol, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460 (1968); Local 24, Teamsters v. NLRB, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959) and Local 1355, ILA (Tulse Hill), 146 N.L.R.B. No. 100, rev’d on other grounds, 332 F.2d 992 (4th Cir. 1964); C. Summers & H. Wellington, Labor Law 652 (1968). See also NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Wellington & Winter, The Limits of Collective Bargaining in Public *253Employment, 78 Yale L.J. 1107 (1969). The suggestion of this correlation is that if the union’s substantive objective is within the scope of mandatory subjects of bargaining, it is exempt from both anti-trust and secondary boycott proscription. For another interesting comparison suggested in part by Professors Wellington and Summers, compare Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910 (1937) with Douds v. Metropolitan Fed’n of Architects, 75 F.Supp. 672, 676-77 (S.D.N.Y.1948) and the Court’s opinion in this case. Indeed, the central definition of “secondary” intent for § 8(e) developed in National Woodwork and applied by this Court in Local 223, Sheet Metal Workers v. NLRB, 162 U.S.App.D.C. 145, 498 F.2d 687 (1974) is a result of the Supreme Court’s construction of its antitrust opinion, Allen Bradley Co. v. Local 3, Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945). See also Westinghouse Electric Corp., 150 N.L.R.B. 1574 (1965).
This correspondence between present antitrust doctrine and § 8(b)(4), which focuses on the union’s bargaining objective, is consistent with the common law position on secondary boycotts — that union boycott activity is illegal unless justified by a “privilege.” See Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896); Holmes, Privilege, Malice and Intent, 8 Harv.L.Rev. 1 (1894). The NLRA which protects mandatory collective bargaining over certain subjects supplies the “privilege” which protects the union’s boycott activities. Compare Chicago Bd. of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918); Silver v. New York Stock Exchange , 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963) and cases cited S. Oppenheim & G. Weston, Federal Anti-Trust Laws 96-98 (1968) with Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) and United States v. Nat'l Ass’n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). Senator Taft stated expressly that the purpose of § 8(b)(4) was to “reverse the effect of the law as to secondary boycotts” by restoring the common law position. II Legislative History of the Labor Management Relations Act, 1947, at 1106 (1948).
The Supreme Court appeared to recognize the relation of § 8(b)(4) doctrine and anti-trust doctrine in Connell Construc. Co. v. Local 100, Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). There the union engaged in seemingly flagrant secondary activity, the Board refused to issue a complaint in an identical case involving the same union and a different subcontractor — either on the basis of its “right to control” doctrine or on the basis of an expansive view of § 8(e)— and the injured employer filed an anti-trust complaint. If anti-trust doctrine and secondary boycott doctrine are fully correlated, then an anti-trust cause of action can properly be viewed as a third party remedy when the Board refuses to issue a complaint. Cf. W. J. Milner & Co. v. Local 349, Electrical Workers, 476 F.2d 8 (5th Cir. 1973). See also Connell Construction Co. v. Local 100, Plumbers & Steamfitters, supra 421 U.S. at 647-50, 95 S.Ct. 1830 (Stewart, J., dissenting).
. The Board makes one final implied argument. It is suggested that the construction industry proviso to § 8(e) by approving certain types of job sites agreements but forbidding economic pressure brought to enforce such agreements would be undermined by our holding in this case. By permitting economic pressure in support of an agreement which would fall under the proviso to § 8(e) if it involved an agreement with the general contractor, it is argued, this Court is ignoring the Congressional assumption that such agreements may not be enforced through economic pressure. This argument must be rejected. First, a close reading of the legislative history, particularly the Congressional consideration of Denver Bldg. Trades, indicates the only subject of Congressional action was union signatory agreements, economic pressure in support of which would not be approved by my reasoning or the Court’s. See Conf.Rep., supra note 1, at 39; Connell Construction Co. v. Local 100, Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) citing Drivers, Salesmen, etc., Local 695, Teamsters v. NLRB, 124 U.S.App.D.C. 93, 361 F.2d 547, 553 (1966). Second, we will not extend such a narrow Congressional balance of union and employer economic power beyond the specific subject which motivated Congressional action, when such extension will reduce the effectiveness of the strike weapon. See note 11 supra.
I make one caveat to the reasoning of this opinion. The case sub judice concerns union pressure on an allegedly third party employer proscribed by § (b)(4)(ii)(B), and not union pressure on other employees as proscribed by § 8(b)(4)(i), except to the extent the union here attempted to persuade its own members to