(dissenting):
In my opinion the Board’s order here cannot be affirmed, because it rests on a per se approach to “union signatory” subcontracting clauses that embodies legal error. The Board transforms what appears to be a local union’s work preservation dispute over the subcontracting of unit work into a secondary boycott illegal under § 8(b)(4)(B) of the National Labor Relations Act, without undertaking the inquiry — mandated by the Supreme Court in National Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612, 644, 87 S.Ct. 1250, 1268, 18 L.Ed.2d 357 (1967) — “into whether, under all the surrounding circumstances, the Union’s objective was preservation of work for [unit] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere.”
In place of the broad factual inquiry required by National Woodwork, the Board uses a per se approach which premises that-every “union signatory” subcontracting clause necessarily embodies a secondary objective, and consequently that union economic action to enforce such a clause is automatically a violation of § 8(b)(4)(B).1
The Board couples its per se label for the clause, as making union economic enforcement illegal, with a per se labelling of the parties, characterizing the contracting employer as a “neutral general contractor” who is “powerless to resolve” the dispute, and dubbing the subcontractor the “primary” employer with whom the Union “had a primary dispute over the assignment of work.”2 It does this by ignoring the posture of the contractor as the one who generated the dispute by his very exercise of power, by subcontracting in violation of a concededly legal clause, and by focusing exclusively on the controversy at a point in time after the disputed subcontract had been given out. This is essentially an application of the “right to control” approach that was recently repudiated by the en banc decision of this court in Enterprise Association v. NLRB, 172 U.S.App.D.C. 225, 521 F.2d 885 (1975), cert. granted, 424 U.S. 908, 96 S.Ct. 1101, 47 L.Ed.2d 311 (1976) (No. 75-777).
Because I believe that the Board’s reliance on mechanistic formulae diverted it from its duty to appraise the Union’s objective in light of “the circumstances surrounding the creation of this labor dispute,”31 would remand for a determination consistent with National Woodwork and this court’s rulings on “right to control.”
I.
This case grows out of a multi-employer agreement negotiated by Local 644 of the Carpenters’ Union (the Union), the collective bargaining agent for all union carpen*1157ters in Tazewell and Mason Counties, Illinois, with the Home Builders Association of Tazewell County, and of a clause which restricts the subcontracting of job-site unit carpenter work except to signatories of an agreement with the International Carpenters’ Union or one of its affiliates. It is common ground that the clause itself is lawful under § 8(e) of the Act, but the Board holds the Union in violation of § 8(b)(4)(B) for striking to enforce the multi-employer agreement. Although Walsh Construction Company, general contractor in charge of the erection of the superstructure of a power plant for Commonwealth Edison Company, is governed by the multiemployer agreement,4 it subcontracted the disputed work — scaffolding over 14 feet in height and installation of power mechanisms for roll-up steel doors — to Kinnear Corporation. Kinnear, not a signatory to an agreement with the Carpenters, sought to perform the disputed tasks with members of the Ironworkers’ Union, and Local 644 struck in support of its claim that this was carpenters’ work, which it had lawfully sought to preserve for carpenters serving the site. Its members — carpenters employed on the Edison site by Walsh and the other charging parties, all governed by the multi-employer agreement — refused to cross the picket lines. The dispute ended when representatives of the Carpenters and Ironworkers agreed that Walsh carpenters would perform the disputed tasks.
Seizing on the bare language of the subcontracting clause, the Administrative Law Judge declared that the Union’s purpose was “not to protect the work of employees already in the bargaining unit, but to enlarge the coverage of the bargaining unit by forcing the subcontractor to accept his contractor’s agreement with the Union, thereby affecting his relationship with his own employees who must join a union not of their own choosing, and with potential employees who have to use the Union’s hiring hall.”5 In the ALJ’s taxonomy, Kin-near was the primary employer “with whom Local 644 had a primary dispute over which union was to perform the work in dispute, and Walsh was a secondary employer, embroiled in a dispute it was powerless to resolve except by unilaterally changing the terms of its subcontract with Kin-near or by ceasing to do business with it.”6 The Board adopted these “findings” without further elaboration.
The majority votes to affirm, even though the AU and the Board failed to give serious consideration to, and issue findings on, the Union’s contention that it was engaged in a wholly primary effort to preserve traditional carpenters’ work for the carpenter employees of the multiemployer unit that embraced Walsh and the other charging parties, rather than a secondary campaign to enlist Walsh’s and the others’ aid in organizing Kinnear’s employees.7 Pointing to the stipulation, agreed to by the Board that “[t]here is one collective bargaining unit agreement in effect throughout the entire jurisdiction of the union, and the bargaining unit consists of all the [signatory] employers,”8 and to uncontroverted testimony that the disputed work involved traditional carpenter tasks9 and that there is no single long-term employer but rather rotation of unit carpenters among a group of signatory employers in accordance with *1158the availability of work and the operation of its hiring hall,10 the Union submits that its objective was to preserve the disputed work for the benefit of the unit carpenters. Contrary to the ALJ’s “finding,” the Union asserts that it entertained no organizational objective with respect to Kinnear’s iron-workers, for no enlargement of the unit would have occurred if Kinnear had abided by the multi-employer agreement regarding this work; Kinnear would merely have had to accept referrals from the Local 644 hiring hall in performing the"disputed work on this site.11
The majority asserts that the ALJ did not focus exclusively on the bare language of the subcontracting clause, but did in fact consider and reject the above contention of the Union, and that “[its] conclusion was made only after consideration of all the relevant facts and principles and was not reached automatically or mechanically.”12 With considerable dexterity, the majority plucks a quotation from the ALJ’s “concluding findings” and relocates it in a context of material nowhere adverted to in those findings, material derived in part from the ALJ’s earlier introductory recitation of background facts and in part from testimony in the transcript to which the majority imparts its own gloss. The ALJ’s analysis is, of course, revealed in his reasoning, in his reference to the crucial facts, in short, in his “concluding findings.” What the majority’s restructuring accomplishes is to convey the impression that the ALJ engaged in a multi-faceted analysis, going beyond reliance on the supposedly proscribed character of the “union signatory” clause or on the “right to control” doctrine. Thus, the majority opinion puts it: The ALJ “also earlier cited additional acts of the Union representatives which . . . were properly interpreted and relied upon as indicating their secondary objectives.” This “critical fact finding” is “also supported by” a fragment of testimony by the Local 644 business agent showing that the Union was really concerned with bringing Kinnear’s employees into the Carpenters’ fold. And this testimony “is buttressed by” the facts that Walsh’s agreement was with the Carpenters’ International union rather than Local 644 directly, and that a representative of the International was involved in the negotiations.13
To understand the basis of the ALJ’s determination and the scope of his inquiry, the passage quoted from the ALJ’s “concluding findings” by the majority must be examined in its original context:
However, a provision which permits an employer to subcontract out on-site construction work only to a subcontractor who will himself agree to be bound by the agreement between the contractor and the Union, is an organizational device directed against the subcontractor, designed to preclude a signatory contractor from doing business with a non-signatory subcontractor. The purpose of such a provision is not to protect the work of employees already in the bargaining unit, but to enlarge the coverage of the bargaining unit by forcing the subcontractor to accept his contractor’s agreement with the Union, thereby affecting his relationship with his own employees who must join a union not of their own choosing, and with potential employees who would have to use the Union’s hiring Hall.8
Applying these general principles to the facts here, Albrecht and Guler were concerned whether Kinnear, the subcon*1159tractor, had a bargaining agreement with the Carpenters International or some constituent body of that organization. They were demanding in effect that the Carpenters’ jurisdictional claims be observed by Kinnear, and that the work in dispute be assigned to Kinnear employees whom Local 644 would represent.14
The italicized language is merely, as the ALJ himself explicitly says at the outset of the second paragraph, an application of the general principles set forth in the first paragraph to the facts of this case. The general principle of the first paragraph sets forth his conclusions as to the inherent secondary character of the “union signatory” clause. There is not even a glimmer of the approach required by National Woodwork —that whether the clause operates in a secondary manner cannot be foredained from the clause itself, but must be determined from the facts of the particular case. At no point in the ALJ’s “concluding findings” are statements by Local 644 representatives discussed as independent evidence of a secondary objective. The testimony of Local 644’s business agent, quoted by the majority, is not only ambiguous on its face, but it is nowhere quoted — or even cited — in the ALJ’s opinion.15 Similarly, there is not a hint in the ALJ’s decision of reliance on Local 644’s supposed lack of “direct contact with Walsh” or on the participation of an International representative in the negotiations. It is abundantly clear why — the ALJ’s was a per se analysis, defined by his conclusion that the clause at issue is an organizational device which necessarily carries a secondary objective. The majority, while purporting to eschew per se analysis, actually adopts the ALJ’s approach and throughout its opinion similarly equates the mere presence of a “union signatory” clause with secondary activity.16
Had the ALJ and the Board followed the approach mandated by National Woodwork, the statements made by Local 644 officials could properly be considered as one of the surrounding circumstances of the case.17 But the ALJ would then have had to give deliberative consideration to the Union’s contention that its statements about preserving work “for Carpenters” must be interpreted as meaning “for carpenter employees of the multi-employer unit,” because only those employees, not carpenters generally, would have performed the disputed work.18
*1160On the key questions, it is my view that the judicial function at this time is not confined to the findings as made, which embody an approach that I consider erroneous in law, but must be viewed in terms of findings that can be foreglimpsed as potentially emerging on a remand, following use of a sound legal approach.
In that context, the ultimate question is this. Was Local 644 acting on behalf of the unit employees — that is, the carpenters working on traditional carpenter work in Tazewell and Mason Counties on projects governed by the Local’s multi-employer agreement with Home Builders Association? Or was it acting so as to reach beyond that unit and those employees, e. g., in order to gain new members for the Union, new contracts, or new work? In the Supreme Court’s words, was Local 644’s objective to preserve work for unit carpenters, or was the boycott “tactically calculated to satisfy union objectives elsewhere”?
While I do not have the responsibility for factfinding, it seems entirely congruent with the record before us that the facts will be discerned in this shape — that what Local 644 really wanted was for either Walsh or any subcontractor to use the employees already in the unit; that it was not acting in order to have Kinnear sign a contract which would benefit the Union, as an institution distinct from the unit employees, as to the acquisition of either new work or new dues-paying recruits. That this shape of the facts may fairly be discernible is strengthened in the case before us in that it does not appear that Kinnear has any carpenters in its work force (or even whether it does or proposes any other work in Tazewell and Mason Counties). Recruitment of Kin-near’s ironworkers into the Carpenter Union fold was palpably not an objective that could have been realistically contemplated by an experienced union like Local 644, rooted in strongly felt craft union loyalties.
I recognize that the statute speaks in terms of “an object,” and that § 8(b)(4)(B) can be violated by the presence of a secondary object even though the union’s principal concern is the primary one of work preservation for unit employees.19 But the proscribed object must be a substantial one in light of the realities of the instant case, not a speculative gossamer of a possibility.20 A substantial secondary objective may be evinced in other fact situations — e. g., where a union engages in selective enforcement of the clause, ignoring it when a subcontractor hires carpenters from a sister local21 or perhaps if the clause were enforced against a subcontractor with a work force of nonunion carpenters. The legality of Local 644’s strike here, however, must be measured solely against the actual circumstances of this case.
Without an appraisal of the Union’s objectives under the circumstances, the majority proceeds by speculation as to Union objectives derived from the mere language of “the subcontracting restrictions that the Union demanded be applied here.” The majority hypothesizes three alternative objectives for the Local 644 strike, the last two deemed secondary; (1) to preserve traditional work for Local 644 members; (2) to have the work performed by a subcontractor under contract with the Carpenters’ Union or any of its subordinate unions (although having no contract with Local 644); or (3) to have the work performed by a *1161subcontractor who has agreed to sign a Local 644-dictated agreement.22
The majority’s analysis is faulty because it is riveted to the bare language of the clause, an approach not permitting attention to be diverted to the factual context of this case. Objective (2) may be a theoretical possibility under the clause, as a matter of abstract logic, but there is neither evidence nor a finding that this was in fact an objective, or even that it was a meaningful possibility in this situation. It is not contended that there were subcontractors hiring carpenters from sister locals in this ease, and there is not a scrap of evidence of a history of discrimination in favor of sister Carpenter locals in the enforcement of the subcontracting clauses to support a finding of a secondary taint. And objective (3) cannot be viewed as secondary under the circumstances of this case assuming the disputed work were preserved to the unit carpenters already represented by Local 644. The Union posits that this was both its objective and the reality of the underlying circumstances. Even postulating that a possible Union objective was to have Kin-near sign on with Local 644, the disputed work would have been done by carpenters already in the Unit and not by Kinnear’s ironworkers as conscripts in the Carpenters’ Union. The Union’s contention seems forceful on its face, and remains uncontroverted under the ALJ’s per se approach. I do not see how we can affirm the Board here in the absence of deliberative consideration culminating in findings on the Union’s contention.23 On the present record, embodying the Board’s erroneous approach, I cannot agree with the majority that “[t]he Union’s strike objectives were clearly not limited to preserving work for Local 644 unit members but also included the objective of changing the bargaining representative of the employees of a contractor with whom it did not have a contract.” 24
II.
The Supreme Court has made clear that although the language of the secondary boycott and hot-cargo provisions, §§ 8(b)(4)(B) and 8(e), respectively, is sweeping, it must be read in light of the time-honored rights of employees to employ economic weaponry in the course of disputes with their immediate employer, even though the fallout from such conflicts often hits neutral third parties. As Justice Brennan put it in National Woodwork:
Strongly held opposing views have invariably marked controversy over labor’s use of the boycott to further its aims by involving an employer in disputes not his own. But congressional action to deal with such conduct has stopped short of proscribing identical activity having the object of pressuring the employer for agreements regulating relations between him and his own employees.
386 U.S. at 620, 87 S.Ct. at 1255. The distinction drawn by the National Woodwork Court as best comporting with congressional intent is between permissible pri*1162mary activity involving incidental secondary effects (where “the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-á-vis his own employees”) and proscribed secondary activity (where “the tactical object is [the boycotted] employer, or benefits to other than the boycotting employees or other employees of the primary employer”). Id. at 645, 87 S.Ct. at 1268. While “[t]his will not always be a simple test to apply,” id., its complexity is mandated by the statute and cannot be circumvented by per se rules.
Although “union signatory” clauses should be carefully scrutinized, because making the selection of subcontractors turn on their union status “bears only a tenuous relation to the legitimate economic concerns of the employees in the unit,”25 per se prohibition is impermissible under National Woodwork. The pertinent rule is that “the Board may not rely on ‘blanket pronouncements in respect to subcontracting clauses.’ ” Orange Belt District Council of Painters No. 48 v. NLRB, 117 U.S.App.D.C. 233, 237, 328 F.2d 534, 538 (1964), quoting Retail Clerks Union Local 770 v. NLRB, 111 U.S.App.D.C. 246, 251, 296 F.2d 368, 373 (1962).
The nature and importance of a National Woodwork inquiry is emphasized by our opinion in Local 742, United Brotherhood of Carpenters v. NLRB, 144 U.S.App.D.C. 20, 444 F.2d 895, cert. denied, 404 U.S. 986, 92 S.Ct. 447, 30 L.Ed.2d 371 (1971). The Court held that the absence of a specific work preservation clause does not permit the Board to avoid a National Woodwork inquiry into the “surrounding circumstances” to determine the union’s objective. We stated:
If the presence or absence of a specific work preservation agreement is to make a difference, it can only be as one of many “surrounding circumstances” used to determine what the union’s objective was. It may be, for example, that when the union acts to enforce a specific clause, its objective more clearly relates to its labor relations with the primary employer. But the absence of such a specific clause is obviously not enough by itself to indicate a secondary objective relating to another employer. We note that the focus of National Woodwork is whether the union’s objective was directed to the labor relations — not simply the specific contractual provisions, but the labor relations generally — of the union members’ employer.
Id. at 28, 444 F.2d at 903 (emphasis in original). The case can be distinguished in particular, but its general thrust is instructive. It holds against the use of a per se approach grounded on contract clauses, and emphasizes the need for a full inquiry, in the context of the “surrounding circumstances,” into the union’s objectives.
Notwithstanding the language in some of the cases cited by the majority, the Board and the Intervenor expressing disapproval of “union signatory” clauses, none of these decisions can properly be read as finding the mere presence of such clauses violative of § 8(b)(4)(B)26 in the absence of indepen*1163dent evidence of a secondary (usually organizational) objective. While the unions in some of those cases argued that they were merely trying to preserve work for employees in the unit, this purported motivation was belied by the words or acts of the unions; agreement with the subcontractors leading to the organization of their employees would have resolved the dispute, which would have benefited the union, by expanding membership, but would not have preserved work for the benefit of preexisting unit employees.27 In the cited cases, despite some broad language, the courts based their finding of a proscribed objective on the kind of examination of the attendant circumstances which the Board failed to undertake here.
The Board is in error in its premise that a union’s enforcement of a “union signatory” clause is automatically equivalent to, and tainted by, a secondary objective.28 That enforcement of a “union signatory” clause may be devoid of a secondary object is established by NLRB v. Local 28, Sheet Metal Workers, 380 F.2d 827 (2d Cir. 1967). The Second Circuit in that case held that § 8(b)(4)(B) did not bar a boycott by construction site employees, represented by New York Local 28, of air conditioning dampers manufactured by a Milwaukee plant, in order to enforce an agreement requiring the general contractor to purchase the dampers from New York manufacturers employing Local 28 members. The court found there was no evidence of a (¡secondary objective, noting that the Milwaukee plant was organized by a sister local of the same international and the New York local had no desire to expand its jurisdiction into Milwaukee. While the particu*1164lar factor stressed by the court — the absence of anti-rival union animus — is not present here,29 Local 644 can emphatically make the same core argument, that it plainly lacked any organizational interest in Kin-near’s ironworkers. In fact, Local 644’s work preservation claim is more directly related to the interests of the boycotting employees than was Local 28’s. In Local 28. Sheet Metal Workers, the only interest of the boycotting construction site workers at stake in rendering aid to fellow local union members employed in manufacturing plants was that of maintaining a mutual defense front in the local, an activity of long-range value to the striking workers, but having no current impact in terms of0 unit work preservation.30 In the instant case, by contrast, the concern of the striking members of the Local was immediate— to assure for themselves current work, preserving what they had traditionally performed, and prevent its escape from the unit.
At oral argument, Board Counsel argued that Local 28, Sheet Metal Workers no longer represents the view of the Second Circuit with respect to “union signatory” clauses, citing NLRB v. National Maritime Union, 486 F.2d 907 (2d Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974). In that case, the issue was whether the clause violated § 8(e), because the clause was not saved by the proviso put in § 8(e) for on-site construction industry situations. The court found that § 8(e) was violated by a clause providing that if the contracting shipowner sold a ship to a shipper not already under contract with the signatory union it would require that the crew be provided by the union and that the purchaser agree to abide by the terms of the vendor’s collective bargaining agreement. Since the signatory union’s practice was to remove all seamen from a ship once it was sold and refit the ship with seamen enjoying seniority in the union hiring hall, it argued that appropriate work unit included all seamen who in the future may be referred from the hiring hall, and that the purpose of the clause was to preserve jobs for those employees. The court rejected the argument, concluding that given the size of the proposed unit in relation to the actual work force of the ship and the absence of contact among the vast majority of workers in the supposed unit, the clause was designed to benefit the union’s interests as distinct from those of the particular employees working on the ship involved.31 Significantly, the court did not rest on the broader proposition asserted by the Board here. Rather than end its analysis with a condemnation of the clause as being of the prohibited “union signatory” variety, the court looked at “the circumstances of the arrangement” to discern the union’s real motivation. After an examination of the operation of the clause in light of the particular industrial setting, it concluded, correctly, that the union was essentially seeking to preserve work for the benefit of its general membership rather than for the work force of the unit defined by the ship that was to be sold.
The Board’s approach in this case deviates from that required by National Woodwork and is not supported by the cases. Conceivably, even following a National Woodwork -type inquiry, the Board on remand might discern independent evidence of a secondary objective.32 However, Local *1165644 is entitled to a considered assessment of its position, as to the significance of its actions “under all the surrounding circumstances,” and to specific findings based on substantial evidence.
III.
A further difficulty I have with the Board’s order is its incorporation of a “right to control” approach. In a critical paragraph, the ALJ concludes:
It was Kinnear with whom Local 644 had a primary dispute over which union was to perform the work in dispute, and Walsh was a secondary employer, embroiled in a dispute which it was powerless to resolve except by unilaterally changing the terms of its subcontract with Kinnear or by ceasing to do business with it.33
Although the majority of this division of the court seeks to minimize the italicized language, suggesting that Walsh’s lack of control was “at best a minor basis” and merely one of many factors relied upon by the ALJ,34 its opinion states, with respect to union signatory clauses, that right to control “points to a significant legal conclusion concerning the use of economic action to alter the labor relations of other parties.”35 The majority opinion, moreover, adopts much of the tenor of the above language of the ALJ. It finds Local 644’s strike illegal because
[ojnce Walsh had engaged Kinnear to fabricate steel doors off-site and then to erect the requisite scaffolding and install the power mechanisms on-site, the object of the Union’s strike was — as its representatives repeatedly stated — logically directed toward changing Kinnear’s organizational status, or toward forcing Kin-near off the site because it would not sign an agreement.36
Similarly, in its concluding remarks, rejecting what is termed the Union’s “fungibility” argument, the majority opinion states:
Rotation among carpenters did not involve ironworkers and cannot be deemed to have included them in Local 644’s unit. Once Kinnear was awarded the task of installing seven steel doors, Walsh could not compel Kinnear to use any carpenters to work on the tall scaffolding and the power mechanisms, regardless of their immediate employer, without pressuring the Ironworkers’ Union to accept Local 644’s jurisdictional claims.37
*1166This view ignores our recent decision in Enterprise Association v. NLRB, supra. It is the central teaching of Enterprise Association that the neutrality of the contracting employer is determined by looking at the position he was in before he tied his hands by subcontracting the disputed work. If the Union’s action to enforce the “union signatory” subcontracting clause was in the context of a permissible work preservation effort, that could not be converted into per se prohibited secondary activity by the mere fact that after signing that clause Walsh had proceeded by subcontracting to Kinnear and thus became “powerless” to reassign the disputed work to its carpenter employees without acting in breach of that subcontract.38 Walsh had the power to assign the work to its own carpenters at the time it gave the subcontract to Kinnear, and in fact had reserved carpentry work for its own employees on previous subcontracts.39 The dilemma Walsh brought upon itself cannot supply the determinative ground for finding Walsh to be a neutral employer embroiled in a controversy not of its own making.40
To the extent the Board’s ruling and the majority’s affirmance are motivated by solicitude for employers in Walsh’s position who, having subcontracted work in violation of negotiated restrictions permissible under § 8(e), find themselves confronted by the conflicting claims of rival unions, their concern is misplaced. Walsh was not without recourse. He was confronted with a jurisdictional dispute and could have brought jurisdictional boycott charges under § 8(b)(4)(D).41 The Board would have *1167been empowered under § 10(k) to assign the work to the appropriate union.42 As the Supreme Court has recently emphasized, this procedure was developed by Congress “[i]n the belief that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions,” and § 10(k) was developed as a procedure that would have strong practical consequences but, being only advisory in legal effect, could be carried out expeditiously, without the restrictions governing adjudications. ITT v. Local 134, Int’l Bhd. of Electrical Workers, 419 U.S. 428, 430-31, 447-48, 95 S.Ct. 600, 603, 42 L.Ed.2d 558 (1975). Walsh was not required to invoke a remedy under § 8(b)(4)(D) if there was a violation of § 8(b)(4)(B).43 But the availability of relief under § 8(b)(4)(D) underscores the importance of a deliberative approach to § 8(b)(4)(B), without ascribing secondary objectives to work preservation disputes by means of per se categorization of “union signatory” clauses and reliance on “right to control.”
I respectfully dissent.
. Supp.App. 14.
. Id. at 15-16.
. Enterprise Association v. NLRB, supra, 521 F.2d at 897.
The Supreme Court in National Woodwork indicated that “such circumstances might include the remoteness of the threat of displacement by the banned product or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry.” 386 U.S. at 644 n. 38, 87 S.Ct. at 1268.
. Walsh, although not a member of the Home Builders Association, is party to an agreement with the International Carpenters which incorporates by reference the terms of Local 644’s agreement with the Association, including the subcontracting clause at issue. Supp.App. 9.
. Supp.App. 14-15.
. Id. at 15 (emphasis omitted).
. Brief of Petitioner at 13, 26-27, 32-34.
. App. 25.
. Representatives of Walsh and Morrison (one of the charging parties) conceded that the disputed tasks were within the traditional jurisdiction of the Carpenters’ Union. App. 42, 62; Supp.App. 10. The Union also points to agreements with the Ironworkers’ Union, incorporated by reference in the collective bargaining agreements signed by Walsh and the Association, assigning the disputed work to the Carpenters, Resp.Exh. 2, App. 18; Resp.Exh. 3, App. 18.
. Brief of Petitioner at 13, 25-26, 32-33; App. 43-44, 62, 85, 94.
. Brief of Petitioner at 13 (“had Waish not subcontracted or subcontracted in accordance with the collective bargaining agreement, the same employees in the bargaining unit would have performed the work in question”).
Local 644’s agreement with the Association, adopted by Walsh, provided for union referrals in filling job openings. Gen’l Counsel Exh. 3, App. 14-15. Walsh’s agreement with the International Carpenters had a similar provision. Gen’l Counsel Exh. 2, App. 9.
. Majority Op. at-of 175 U.S.App.D.C., at 1153 of 533 F.2d.
. Id. at---of 175 U.S.App.D.C., at 1142-1143 of 533 F.2d.
See Article II, Sections 1 and 5 of Local 644’s agreement with the Association.
. Supp.App. 14-15 (emphasis supplied).
. If the ALJ indeed intended to issue a finding on the independent evidence of Local 644’s secondary activity, see note 32 infra, he surely did it in so indefinite a manner as to be undiscernible. This is plainly inadequate, for the reviewing court “must have before it findings which are sufficiently definite to enable it to review intelligently the decision of the agency and ascertain if the facts on which it acted afforded a reasonable basis for its decision.” Sindicato Puertorriqueno De Trabajadores v. Hodgson, 145 U.S.App.D.C. 238, 245, 448 F.2d 1161, 1168 (1971); see Saginaw Broadcasting Co. v. FCC, 68 App.D.C. 282, 287-89, 96 F.2d 554, 559-61, cert. denied, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391 (1938).
. Thus, “union signatory” clauses “by their terms have a secondary focus” (p.-of 175 U.S.App.D.C., p. 1146 of 533 F.2d); “the contractual provision on subcontracting [Local 644] sought to enforce had a secondary focus” (p. - of 175 U.S.App.D.C., p. 1146 of 533 F.2d); “the breadth of the subcontracting limitations in the agreement, to which Union representatives constantly referred as stating their objectives indicates that the demands and objectives of its strike exceeded mere work preservation” (p.-of 175 U.S.App.D.C., p. 1146 of 533 F.2d); “the proscribed secondary objective clearly appears from the Union’s efforts to enforce the requirements of the contract itself” (p.-of 175 U.S.App.D.C., p. 1150 of 533 F.2d n. 35).
. More problematic is the majority’s proffer that there is significance, bearing on whether the union entertained a secondary objective, in the fact that Local 644 was not a direct party to an agreement with Walsh but merely a beneficiary of an agreement negotiated at the International level, which incorporated local contracts by reference, and that a representative of the International was involved in the negotiations. These are such typical aspects of construction industry labor relations that it is difficult to suppose that if the Board were to focus on them it would regard them as material evidence of a secondary taint.
. See notes 23, 32 infra.
. See NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 689, 71 S.Ct. 943, 95 L.Ed. 1284 (1951); IBEW v. NLRB, 341 U.S. 694, 700, 71 S.Ct. 954, 95 L.Ed. 1299 (1951); Local 419, Carpet Layers v. NLRB, 151 U.S.App.D.C. 338, 345 n. 13, 467 F.2d 392, 399 n. 13 (1972).
. The cases cited by the majority, see note 19 supra, merely hold that even though the ultimate objective may be primary, § 8(b)(4)(B) is violated if an intermediate objective, necessary to the attainment of the ultimate purpose, is secondary. See NLRB v. Denver Building & Construction Trades Council, supra, 341 U.S. at 688-89, 71 S.Ct. 943. They do not support the proposition that the legality of a work preservation boycott turns on the Board’s ability to speculate on the possibility of insubstantial alternative objectives of a secondary character.
. Enterprise Association v. NLRB, supra, 521 F.2d at 903-04 n. 44.
. Majority Op. at-of 175 U.S.App.D.C., at 1147 of 533 F.2d.
. At the very least, any such redirection to the case by the Board would have to take into account the significance of the separate provision requiring the use of Local 644’s hiring hall in filling job openings of the contracting employees), see note 11 supra, and give consideration to its applicability to Kinnear in the event Kinnear as subcontractor were to sign the multi-employer agreement negotiated between Local 644 and the Association. The record as it stands does not support the majority’s supposition that the hiring hall agreement may not be limited to existing employees and “would provide even greater pressure for Kinnear’s employees to join the Carpenter’s Union, since they would then have to use the union hiring hall to retain their jobs” (p. - of 175 U.S. App.D.C., p. 1144 of 533 F.2d n. 13). This is mere speculation in the absence of findings by the Board on the operation of the hiring hall provisions, particularly on the question of whether Kinnear employees could have retained the disputed work by simply signing on with the Carpenters or whether the pre-existing unit employees would have reclaimed the work that had been subcontracted to Kinnear, by reason of priority based on seniority.
. Majority Op. at-of 175 U.S.App.D.C., at 1148 of 533 F.2d.
. Meat and Highway Drivers v. NLRB, 118 U.S.App.D.C. 287, 295, 335 F.2d 709, 717 (1964).
. The few decisions which seem to have rested on a per se approach involved the legality under § 8(e) of “union signatory” clauses outside the construction industry. See District No. 9, Int’i Ass’n of Machinists v. NLRB, 114 U.S.App.D.C. 287, 315 F.2d 33 (1962) (preference to signatory subcontractors); Meat and Highway Drivers v. NLRB, 118 U.S.App.D.C. 287, 295, 335 F.2d 709, 717 (1964) (subcontracting in cases of lack of equipment to companies employing members of same local whenever possible); NLRB v. Joint Council of Teamsters No. 38, 338 F.2d 23 (9th Cir. 1964) (subcontracting restricted to signatories of multi-employer agreement); A. Duie Pyle v. NLRB, 383 F.2d 772 (3d Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 819, 19 L.Ed.2d 871 (1968) (provision requiring owner-operators and fleet-owners to join union as condition of retaining subcontracted work).
These decisions do not establish a per se rule for § 8(b)(4)(B) cases involving on-site construction industry settings because § 8(e), unlike § 8(b)(4)(B), does not require a finding of unlawful objective but may turn on probable secondary consequences. As this court held in Meat and Highway Drivers v. NLRB, supra, 118 U.S.App.D.C. at 294, 335 F.2d at 716;
*1163Under § 8(e), what the Congress has prohibited are certain terms, and — as contrasted with § 8(b)(4) — the union’s object is not an element of the unfair labor practice. To conclude that a contract term falling within the letter of § 8(e) properly falls within its prohibition, there must be either a finding that both parties understood and acquiesced in a secondary object for the term, or a finding that secondary consequences within § 8(e)’s intendment would probably flow from the clause, in view of the economic history and circumstances of the industry, the locality, and the parties.
See also Truck Drivers Union Local No. 413 v. NLRB, 118 U.S.App.D.C. 149, 152, 334 F.2d 539, 542, cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964); Sheet Metal Workers Int’I Ass’n, Local Union No. 223 v. NLRB, 162 U.S.App.D.C. 145, 150-51, 498 F.2d 687, 692-93 (1974).
In distinguishing these non-construction site cases from the instant controversy, I do not intend, as the majority implies (pp.--of 175 U.S.App.D.C., pp. 1145-1146 of 533 F. 2d), that the mere legality of a clause under § 8(e) bars finding a § 8(b)(4)(B) violation. Rather, I concur in the position of this and other circuits that where the legality of the clause is clear under § 8(e), analysis must turn to an appraisal of the Union’s objectives “under all the surrounding circumstances,” and not be content with speculation into the probable consequences of the mere presence of the clause.
. See, e. g., Local No. 636, United Ass’n v. NLRB, 108 U.S.App.D.C. 24, 30, 278 F.2d 858, 864 (1960) (testimony by union that it was concerned with general contractor’s acceptance of bids with manufacturers not under contract with union); Retail Clerks Union Local 770 v. NLRB, 111 U.S.App.D.C. 246, 248, 296 F.2d 368, 370 (1961), on remand, 145 N.L.R.B. 307 (1963) (union made clear that its demands would have been satisfied if rack-jobbers’ employees merely signed up with union); Bakery Wagon Drivers and Salesmen, Local Union No. 484 v. NLRB, 116 U.S.App.D.C. 87, 89, 92, 321 F.2d 353, 355, 358 (1963) (substantial evidence of current dispute between union and subcontractor over union affiliation and work assignments); Orange Belt District Council v. NLRB, 117 U.S.App.D.C. 233, 238, 328 F.2d 534, 539 (1964) (union conceded union signatory character of subcontracting clause and its unenforceability through economic means); Building and Construction Trades Council v. NLRB, 117 U.S. App.D.C. 239, 240, 328 F.2d 540, 541 (1964) (union conceded that clause it sought to enforce required the contractor to use subcontractors who were willing to sign the agreements of the various local unions).
The cases cited from other circuits are to the same effect. See, e. g., NLRB v. Construction & General Laborers’ Union, Local 270, 398 F.2d 86, 87-88 (9th Cir. 1968) (clear evidence union was concerned with non-union status of subcontractor); NLRB v. Local 445, 473 F.2d 249, 252 (2d Cir. 1973) (union not having contract with general contractor insisted on particular unionized subcontractor).
. Compare Note, A Rational Approach to Secondary Boycotts and Work Preservation, 57 Va.L.Rev. 1280, 1290, 1293, 1298 (1971), with Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA §§ 8(b)(4) and 8(e), 113 U.Pa.L.Rev. 1000, 1035 (1965).
. Brief for the NLRB at 18 n. 32; Brief for Babcock & Wilcox as Intervenor at 31.
. See Note, Secondary Boycotts and Work Preservation, 77 Yale L.J. 1401, 1414 (1968) (“there was no suggestion that contractors and manufacturers coordinated their bargaining activity, that union personnel frequently interchanged jobs, or that a decline in the local manufacturing level would adversely affect the union members in the installation unit.”).
. 486 F.2d at 914. See ABA, Section of Labor Relations Law, The Developing Labor Law 137 (1973 Supp.) (the maritime union’s “failure to protect the jobs of the specific unit employees affected was fatal”).
The court also based its decision on the union’s clear antirival union motivation in securing the contested clause. 486 F.2d at 913-14.
. As we suggested in Enterprise Association, union discrimination “in its work preservation tactics on the basis of the organizational status of the manufacturer” may provide sufficient *1165secondary taint to ban an otherwise primary work preservation dispute. 521 F.2d at 903-04 n. 44.
The Board in its brief argues that Local 644’s secondary objective can be discerned not only from the language of the subcontracting clause, but also from its inquiries of Kinnear to determine whether Kinnear had a contract with the Carpenters’ Union (App. 48, 101-02, 108, 116— 17) and the Union’s framing of its claim in terms of preserving the disputed work for carpenters generally rather than for Walsh’s carpenters or the other unit employees (App. 84, 107, 110-11). See Brief for the NLRB at 16-19. The Union argues that in context, its statements were merely shorthand references for the carpenters of Walsh and the other unit employers on the site. See Brief of Petitioner at 26, 33 & n. 13; Reply Brief of Petitioner at 3-4. Since the ALJ failed to issue findings on these matters, the Board cannot now offer them as post-facto justification for its order.
The majority reflects a willingness to read the belated rationalization of Board’s counsel into the ALJ’s opinion, to the effect that the ALJ’s decision “hinged on critical evidence” of “the Union’s attempt to proselytize employees of a secondary employer. . .” See Majority Op. at---,-,-n. 8,-n. 35, -, - of 175 U.S.App.D.C., at 1142-1143, 1146-1148, n. 8, 1149 n. 35, 1150, 1153 of 533 F.2d. This is plainly improper. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, . 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399,411,379 F.2d 453,465 (1967); International Bhd. of Electrical Workers v. NLRB, 159 U.S. App.D.C. 242, 260 n. 66, 487 F.2d 1113, 1131 n. 66 (1972), cert. denied, 418 U.S. 904, 94 S.Ct. 3194, 41 L.Ed.2d 1152 (1974).
. Supp.App. 15 (emphasis supplied).
. Majority Op. at-of 175 U.S.App.D.C., at 1152 of 533 F.2d.
. Id. at - of 175 U.S.App.D.C., at 1152 of 533 F.2d.
. Id. at-, at 1150 of 533 F.2d.
. Id. at - of 175 U.S.App.D.C., at 1155 of 533 F.2d.
. It is not clear from the record that Walsh could not reassign the work consistent with the subcontract. See App. 68-69.
. App. 43-44, 69, 94.
. As we held in Enterprise Association:
We do not think that an employer who is struck by his own employees for the purpose of requiring him to do what he has lawfully contracted to do to benefit those employees can ever be considered a neutral bystander in a dispute not his own. . . [W]here there is a valid work preservation provision in a collective bargaining agreement and where a union refuses to acquiesce in an employer’s violation of that agreement, it is reasonable to assume that the employer can comply in accordance with his prior commitment to his workers and that, absent more evidence than mere stoppage of work, the union’s objectives are legitimate
521 F.2d at 903-04.
The majority states (pp.---of 175 U.S.App.D.C., pp. 1150-1151 of 533 F.2d n. 36), that my dissent “attempts to read Enterprise as supporting the view that in all instances a prior agreement by a contractor limiting his choice of subcontractors to those that recognized the Carpenters’ jurisdiction is a defense to a violation of section 8(b)(4)(B).” That statement of the majority is inaccurate. Rather, I find this court’s position in Enterprise to be that the mere fact that the contracting employer tied his hands does not end our inquiry into “all the surrounding circumstances.” If the boycotting union’s objectives are primary — that is, if Local 644 sought to preserve work for its members, rather than to organize Kinnear’s employees— the fact that the contracting employer has entered into an agreement with the subcontractor which must be breached if the boycotting union prevails cannot be determinative for § 8(b)(4)(B) purposes.
. § 8(b)(4)(D), 29 U.S.C. § 158(b)(4)(D) provides:
(b) It shall be an unfair labor practice for a labor organization or its agents—
(4)(i)’ to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.
Jurisdictional disputes governed by § 8(b)(4)(D) are not limited to those between competing labor organizations representing members who are employees of the same employer. Rather, what § 8(b)(4)(D) requires is that there are two competing groups of employees claiming the work in question, and that the charged party has used proscribed means to have the work assigned to it rather than to the other group of employees. See, e. g., Local *1167134, Int’l Bhd. of Electrical Workers v. NLRB, 486 F.2d 863, 866 (7th Cir. 1973), aff’d on this point but rev’d on other grounds, ITT v. Local 134, Int’l. Bhd. of Electrical Workers, 419 U.S. 428, 436, 95 S.Ct. 600, 42 L.Ed.2d 558 (1975); Sheet Metal Workers Local Union No. 54 (Goodyear Tire & Rubber Co.), 203 NLRB 74 (1973). See Generally ABA, Section of Labor Relations Law, The Developing Labor Law 680 (1971).
. § 10(k), 29 U.S.C. § 160(k) provides:
(k) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.
. Sections 8(b)(4)(B) and 8(b)(4)(D) are not mutually exclusive provisions, and some disputes may properly fall under the ban of both. See NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 305-06, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971); Local 5, Plumbers v. NLRB, 116 U.S.App.D.C. 100, 105, 321 F.2d 366, 371, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963).