II. Maintenance as "Ally."
Finally, as an alternative ground for its holding, the Court finds, on the facts of this case, that Maintenance was not in any event a neutral party entitled to complain of a secondary boycott. The courts have long recognized the so-called "ally doctrine" under which a party who takes over "struck work" from a primary employer involved in a labor dispute becomes himself so directly involved in the primary dispute that he loses his neutrality and may no longer invoke the protective mantle of congressional policy against secondary boycotts to shield his own involvement. Douds v. Metropolitan Federation of Architects, 75 F. Supp. 672 (S.D.N.Y. 1948); Laborer's Local 859 v. NLRB, 144 U.S. App. D.C. 318, 446 F.2d 1319 (1971); see also, Woodwork Manufacturers v. NLRB, 386 U.S. 612, 627, 87 S. Ct. 1250, 18 L. Ed. 2d 357 (1967). While this doctrine appears to have been confined in the past to situations where a strike is actually in progress between union and primary employer before the "ally" takes over work which would otherwise be performed by the union, the rationale of the "ally doctrine" is nonetheless applicable to the particular facts of this case.
The evidence showed that within a few days after Local 82 notified Ring of its desire to renegotiate the terms of their contract, Ring subcontracted out the bulk of the work being performed by the Union to Maintenance. Implicit in the demand by Local 82 for renegotiation was a threat to use economic power in the form of a strike if a new contract could not be reached through collective bargaining. Rather than allowing this process to run its course, Ring sought to short-circuit it by contracting out the bulk of the work previously done by members of Local 82.
Furthermore, the evidence showed that Maintenance, if not indeed an active co-participant in the plan, was at least well aware of it.
Had the process of bargaining on the request of Local 82 for contract renegotiation run its course of impasse, and had the Union struck before Maintenance was brought in to take over the work previously performed by striking union members, there can be no doubt under the decided cases that Maintenance would have been an "ally" unable to complain of a "secondary boycott." Rather than allowing events to follow that course, however, Ring, with the full knowledge and concurrence of Maintenance, pre-empted the process by bringing in Maintenance to take over the union work at the mere threat to invoke economic power which was implicit in the request by Local 82 for renegotiation.
The "ally doctrine" has the salutary purpose of preventing congressional solicitude for the rights of neutrals from becoming perverted into a device for vitiating the protected rights of union members to bargain, and if need be, to strike; it cannot be subverted by formal requirements which ignore the underlying realities.
Therefore, on the facts of this case, where a primary employer seeks to avoid imminent bargaining by subcontracting out work which would otherwise be performed by union members, and at least where the record also indicates that the subcontractor was a knowing party to such a plan, the Court holds that the subcontractor has become an "ally" who has injected himself into the primary dispute to such an extent that he can no longer seek damages for the threat of a secondary boycott.
Judgment is entered for defendant. Defendant's request for counsel fees is denied.