Hot cargo agreements involving the contracting or subcontracting of work to be done on the worksite, and most of the disputes arising in the application of 8(e) have focused around this restriction are enabled by the construction industry proviso of section 8(e). The first issue was determining whether the job site requirement applied only to work that would be done on the job site or to work that could have been previously done there. The construction proviso has been given a tight interpretation by the courts. Although only primary and work preservation clauses are legal in nonexempt businesses, secondary clauses are allowed in the construction industry if they are limited to real on-site activity. Thus, even if they confine the employer to unionized subcontractors or subcontractors with specific union contracts, or even if they impose labor requirements and conditions on other employers, hot cargo clauses are legal and authorized in this industry.
Another key issue that arose from reconstruction’s proviso was how unions might acquire and enforce permissible hot cargo agreements. The construction sector, unlike the garment business, was only exempted from section 8(e) and not from section 8(b) (4). (B). In Colson & Stevens Construction Co., the NLRB held that strikes and picketing could not be used to achieve a construction industry clause that was only permissible under 8(e) and that the construction proviso only allowed clauses that employers agreed to willingly. The courts, on the other hand, disagreed, reasoning that applying 8(b) (4) (A) would render the construction sector exemption effectively useless for unions, which would be contrary to Congress’ objective in establishing the exemption. The Board eventually caved in and decided that 8(e) and 8(b) (4) (A) should be construed pari material, allowing strikes and picketing to gain hot cargo clauses in construction industry labor contracts. Due to the fact that 8(b) (4) (B) still applies to the construction industry, such clauses cannot be enforced through strikes, picketing, or other types of economic coercion; court enforcement is the only option if an employer violates such a clause.
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