way. You put him back or we're going to stop this job." And I said, "Well, go ahead and stop the job, because I'm not putting him back." Then the owner of the building came out. And he says, "Joe, you know sometimes you have to do things that are wrong, to get along in this world." I said, "You may have to, but I don't." THE JURISDICTIONAL NIGHTMARE Joseph Valdastri, 32, is business agent for Local 223 of the Sheet Metal Workers Union in Miami, Fla. In a tape-recorded and edited interview, he discusses the bitter inter-union jurisdictional fights over work. Valdastri: The biggest problem in the trades today is union fighting union. We have problems right now with the pipefitters, over the handling and setting of air conditioning units. It's supposed to be a composite crew divided between the two unions. The pipefitters are taking the position they are not going to abide by the agreements. They're just going to set all the units. Our men don't want to start anything, unless we tell them "go ahead.” It's very difficult for me to call up Mrs. Jones and say, "I've got bad news. John just got his brains beat out on the job and he ain't coming home tonight." So I really don't want to go along with that kind of thing, but it happens from time to time. Metal shelving is another problem. Plain metal shelving has been the work of the sheet metal workers since 1928. But the carpenter, anytime that he can put in plain metal shelving, will do it and use the excuse that it's a replacement of material because the shelf should be made of wood. And just because it's being made of metal now, it shouldn't be ours. Sometimes he doesn't try to give that big an excuse. He just says, "I'm out of work and I'm doing it." I'll then go to the carpenters' business agent and usually, he's going to tell me in so many words to go to hell. These disputes are supposed to be settled by representatives from the international unions. But on something like this, the carpenter has got the work done before you can get someone assigned to decide the dispute. Senator TOWER. I declare that the hearings are adjourned. (Whereupon at 11:45 A.M. the hearing was adjourned.) APPENDIX Additional Statements and Data Hon. JOHN SPARKMAN, AMERICAN INSURANCE ASSOCIATION, Chairman, Committee on Banking, Housing and Urban Affairs, U.S. Senate, New Senate Office Building, Washington, D.C. DEAR MR. CHAIRMAN: We respectfully request that the enclosed statement of American Insurance Association be made part of the record of hearings on the above captioned bill. It is the view of our organization of more than 100 property and casualty insurers that while the goal of this legislation as stated in its preamble is certainly laudable, the language of the bill as presently written creates certain problems with regard to the need to protect local building codes and ordinances as they effect the construction of buildings subject to the scope of this bill. The AIA has recommended the "National Building Code" which is a model code prescribing regulations governing the construction, alteration, equipment, use and occupancy, location and maintenance, moving and demolition of buildings and structures with a view towards instituting high performance standards. We believe that reasonable local control of codes and ordinances is essential to the maintenance of adequate standards, since the existence of potential hazards in a given location will be more accurately recognized by local residents. In our view, the language of the bill is ambiguous so that several problems of interpretation are created: (1) It is unclear how the legal presumptions created in this bill are to affect both new techniques and building materials and existing local codes and ordi nances. (2) Since the Department of Housing and Urban Development is authorized under the bill to approve nationally recognized agencies rather than standards, the emphasis of the bill seems to be directed to construction rather than to safety. (3) The language of the bill may subject it to constitutional questions which have been raised in testimony by the Department of Labor and endorsed by the Department of Housing and Urban Development. (4) S. 3373 seems to raise the possibility of Federal standards being set by the Department of Housing and Urban Development although the intent of the legislation as stated by proponents disavows this possibility. The American Insurance Association comments on this bill with respect to the quality of building codes generally and not with respect to the conflicting interests of labor and the construction industry to the extent that their interests seem incompatible. We hope that the Subcommittee will give close attention to the reasons for our position as set forth in the enclosed statement and will substantially amend or rewrite the proposal in order to avoid the potential problems which are raised in our statement. Please feel free to call upon us if we can provide further information. THOMAS E. HARMAN, Associate Counsel. STATEMENT OF THE AMERICAN INSURANCE ASSOCIATION Gentlemen: The Subcommittee is currently studying a proposal to promote the utilization of improved technology in Federally-assisted housing projects and the increase of productivity in order to meet national housing goals. The American Insurance Association believes that while the intent of the legislation is a laudible one, the bill should be substantially amended or rewritten in 80-741 - 72 - 31 order to avoid several potential problems which are raised by the ambiguity of the language in S. 3373. As the enclosed statement indicates, the interest of the AIA in this legislation goes to the quality of building codes generally and not to the conflicting interests of labor and the construction industry to the extent that their interests seem incompatible. We do believe that the language of the bill as presently drafted is sufficiently vague and confusing so as to create the following serious problems: (1) It is not clear whether the legal presumptions set up in the bill attached to new techniques or materials or to existing codes and ordinances; (2) Because the Department of Housing and Urban Development is authorized to approve agencies rather than standards, the emphasis of the bill seems to be directed to construction with safety as perhaps only a secondary consideration; (3) The language of the bill may subject it to the constitutional questions raised by the testimony of the Department of Labor and endorsed by the Department of Housing and Urban Development; (4) S. 3373 seems to raise the possibility of Federal standards being set by the Department of Housing and Urban Development although the intent of the legislation as stated by proponents disavows this possibility. We hope that, after reading the enclosed statement, you will agree with us that S. 3373 should be substantially amended or rewritten in order to avoid the problems created by the ambiguous language now in the bill. Hon. JOHN SPARKMAN, THE AMERICAN INSTITUTE OF ARCHITECTS, Chairman, Committee on Banking, Housing and Urban Affairs, Washington, D.C. July 10, 1972. DEAR MR. CHAIRMAN: On behalf of The American Institute of Architects, I wish to express our views on S. 3373, a bill to promote the utilization of improved technology in Federally-assisted housing projects and to increase productivity in order to meet our national housing goals. The Institute, the national professional society for the architectural profession with a membership of 24,000 licensed architects, commends your Committee for its decision to conduct legislative hearings on this issue of prime importance to the construction industry. One significant factor in reducing the cost of Federally-assisted housing, without sacrificing quality, is the increased use of new, innovative materials and construction systems. In the process of determining the best components to use in arriving at the design solution that he seeks for each of his projects, the architect carefully reviews the range of alternatives available for building products, techniques, and systems. His ultimate design decisions are reached with foremost concern for the welfare of the prospective users of the building. New forms of construction technology are often selected and included in his drawings and written specifications due to the fact not only that they will keep the cost of construction down but also that they simply will improve the quality of the construction. When these design decisions are circumscribed by unwarranted forces, whether they be restrictive building codes or product boycotts by on-site workers, the architect and his client need sufficient alternative means for implementing the best design for the project consistent with public health, safety, and welfare. If these obstacles to the appropriate execution of the architect's drawings and written specifications are not removed, there are critical questions that must be resolved regarding the welfare of the prospective users, the cost of the project, and the liability of the project designer. The President's Commission on Urban Problems-the Douglas Commissionhas documented the serious difficulties caused by the barriers to the expanded use of innovative construction technology. This Committee and Congress have enacted legislation directed at these problems, including the housing technology research and study program in the Demonstration Cities and Metropolitan Development Act of 1966, the Operation Breakthrough program in the Housing and Urban Development Act of 1968, and the 1969 amendment prohibiting construction technology restrictions in the 1966 Demonstration Cities Act. We further acknowledge your fine work in including Section 711, establishing a National Institute of Building Sciences, in S. 3248, the Housing and Urban Development Act of 1972. This new entity should provide a framework for uniformity and progress in the field of codes and standards. We trust that the Committee will thoroughly study the overall impact of S. 3373 as a means of eliminating undue restrictions on the use of innovative construction technology. It is our hope that this goal can be attained without disrupting the present momentum underway in the field of codes and standards toward uniformity and consensus. Furthermore, it should be achieved without discouraging the voluntary acceptance of innovative construction technology by elements of the building trades as a valid means of increasing productivity and reducing building costs in the construction industry. In our view, S. 3373 may not be the final answer to these problems with specific regard to legal recourse and accreditation of standard-setting and testing agencies. However, it does represent a constructive approach that the Committee should use to build upon in its efforts to enact legislation removing these existing obstacles and bringing the cost of decent housing in line with what most American families can afford. Thank you for your consideration. MAX O. URBAHN, President. STATEMENT OF THE AMERICAN RETAIL FEDERATION The American Retail Federation is an organization comprised of 30 national and 50 state retail trade associations. The membership of these associations consists of a wide variety of retail businesses ranging in size from a small local store to large national chains, representative of all aspects of the retail industry and totalling in excess of one million retailers throughout the country. As major users of construction and as an industry whose very life depends upon a strong and dynamic economy, the Federation appreciates the opportunity to present its views regarding S. 3373. S. 3373 not only prohibits building codes or other local laws from restraining or interfering with the utilization of new or improved technology, but further and most significantly bans ". . . any contract or agreement; or any practice or other restraint which interferes with or restricts the use of new or improved techniques, methods, or materials, or the use of preassembled products in connection with any development, construction, rehabilitation, or maintenance activity . . ." which is assisted under any program administered by the Secretary of Housing and Urban Development. ARF wholeheartedly supports S. 3373 and wishes to delineate why a legislative pronouncement which clearly sets forth the intent of Congress to promote utilization of new and improved technology and proscribe conduct which would inhibit such utilization is urgently needed at this time. The need for an expression of Congressional disapproval of any action which would inhibit or preclude the utilization of modern technology in the construction industry emanates not from a prior Congressional silence regarding this subject, but rather is directly traceable to the holding of the United States Supreme Court in National Woodwork Manufacturers Association v. National Labor Relations Board, 386 U.S. 612. In that case, employers in the construction industry in Philadelphia charged that it was a violation of the "secondary boycott" and "hot cargo" prohibitions of the National Labor Relations Act when carpenters in their employ refused to install pre-cut doors, based on a provision of the applicable labor contract which prohibited their handling materials coming from a mill where cutting-out and fitting work had already been done. A sharply divided Supreme Court, by a vote of five to four, ruled that "product boycotts" were not within the ambit of the Congressional intent when the Congress enacted the "secondary boycott" and "hot cargo" prohibitions contained in the National Labor Relations Act. Although the vigorous dissent in National Woodwork cogently points out the deficiencies in the majority view, a brief history of the legislative action leading to the National Woodwork decision is necessary to fully understand the propriety of the dissent in that case. In 1945, the Supreme Court in Allen Bradley Co. v. Local Union No. 3, I.B.E.W., 325 U.S. 797, held, in a private anti-trust action, that a conspiracy between a New York union of electrical workers, New York electrical equipment manufacturers and New York electrical contractors to refuse to install any electrical equip ment manufactured outside New York City violated the Sherman Act, although had the union been acting alone, no such violation would have occurred by virtue of the Clayton Act exemption to the Sherman Act. In response to this judicially recognized "loophole", Congress, when it enacted the secondary boycott provisions of the Taft-Hartley Act in 1947, sought to prohibit such conduct. Thus, Section 8(b)(4) (A) of the 1947 Act prohibited two types of boycotts. First was the traditional secondary boycott where a union, having a primary dispute with employer A, struck or boycotted or attempted to induce or encour age such action against employer B with whom it had no primary dispute in order to compel employer B to cease doing business with employer A. Secondly, Congress sought to proscribe union conduct which was designed to effectuate the type of "product boycott" which had been present in the Allen Bradley situation. Both the National Labor Relations Board and the courts fully recognized that Congress in the Taft-Hartley Act had intended to ban product boycotts. Thus, the Board, in United Brotherhood of Carpenters, 81 NLRB 802, stated that "Congress considered the 'product boycott' one of the precise evils that that provision [8(b) (4) (A)] was designed to curb." The courts, in such cases as Joliet Contractors Association v. National Labor Relations, 202 F. 2d 606, and National Labor Relations Board v. Local 11 Carpenters, 242 F. 2d 932, agreed with the Board's view of the Congressional mandate. Unions also appear to have reluctantly accepted this judicial confirmation of the clear Congressional intent that product boycotts were a proscribed method of blocking technological progress. Accordingly, the unions turned to anther device to accomplish the same ends. That device became known as the "hot cargo" contract. Under such an arrangement, rather than resorting to illegal boycott activity, the unions simply obtained the employer's contractual consent to avoid utilization of the product or method of production which the union found undesirable. Congressional reaction to this resulted in the enactment of Section 8(e) in the 1959 Amendments to the National Labor Relations Act. Section 8(e) made it an unfair labor practice for a union and an employer to enter into any contract ". . . whereby such employer ceases or refrains or agrees to cease or refrain from handling, suing, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person. . . ." Additionally, Congress strengthened the prohibition on product boycotts which had been contained in Section 8(b) (4) (A) of the 1947 Act and redesignated it 8(b) (4) (B) in the 1959 Amendments. Against this backdrop of reiterated and unmistakable Congressional action designed to preclude product boycotts, the Court majority in National Woodwork nonetheless found the Congressional desire to preclude such conduct unclear. Mr. Justice Stewart, speaking for the minority consisting of Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Clark, pointed out that the product boycott conducted by the union in that case ". . . clearly falls within the express terms of the Federal Labor Law, which makes such conduct unlawful . . .". In criticizing the majority view, the dissent points out that "The Court undertakes a protracted review of legislative and decisional history in an effort to show that the clear words of the statute should be disregarded in these cases. But the fact is that the relevant history fully confirms that Congress meant what it said . . .". The dissenting Justices pointed out that the majority “. . . overlooks the fact that a product boycott for work preservation purposes has consistently been regarded by the courts, and by the Congress that passed the Taft-Hartley Act, as a proscribed 'secondary boycott' ". Events subsequent to the decision in National Woodwork merely serve to confirm fears that economic progress through technological improvements will be sacrificed to union recalcitrance with judicial approval. Exemplary of this is the recent decision by the Circuit Court of Appeals for the District of Columbia in Local 742 Carpenters v. National Labor Relations Board (J. L. Simmons Co.), 444 F. 2d 895. In that case, the employer had contracted to build a new addition to a hospital. One of the duties of the employer's carpenter-employees was to hang new doors. This task historically involved not only the hanging of the doors but also prior preparation which included trimming, routing, mortising and cutting. At the direction of the hospital and based upon the hospital's architect's specifications, the employer purchased pre-machined doors. The union refused to hang the pre-fabricated doors based on what it asserted to be an implied agreement to preserve work traditionally performed by the carpenters on the job site. Although |