Construction Building Materials & Misc. Drivers Loc. 83

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Various Employers in the Building and Construction Industry) and Stan- ley J. Matuszak Laborers' District Council of the State of Arizona, af- filiated with Laborers' International Union of North America, AFL-CIO (Associated General Contrac- tors, Arizona Chapter; Arizona Building Chapter, Associated General Contractors; Homebuilders As- sociation of Central Arizona; Arizona Rock Prod- ucts Association; Dooley's Building Materials Co., Empire Block, Inc.; and Superlite Builders' Supply, Inc.) and Stanley J. Matuszak Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Arizona Rock Prod- ucts Association; Dooley's Building Materials Co.; Empire Block, Inc.; Owens-Corning Fiberglas, Sup- ply Division; and Superlite Builders' Supply, Inc.) and Stanley J. Matuszak Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Union Rock 7 Mate- rials Corporation) and Edward R. Pottinger and Ari- zona Rock Products Association, Party to the Contract Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Various Employers within and outside the Building and Construction Industry) and Antonio J. Calles and Associated General Contractors, Arizona Chapter; Arizona Building Chapter, Associated General Contractors; Arizona Rock Products Association; Owens-Cor- ning Fiberglas, Supply Division, Parties to the Con- tract. Cases 28-CB-1033, 28-CB-1042, 28-CB 1044, 28-CB-1077, and 28-CB-1129 July 10, 1979 DECISION AND ORDER On May 25, 1978, Administrative Law Judge Da- vid G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief.' The General Counsel filed an answering brief in reply to Respondents' exceptions. In addition, the General Counsel filed cross-excep- tions and a supporting brief. The Building and Con- struction Trades Department of the AFL-CIO filed a brief amicus curiae. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The Administrative Law Judge found that cer- tain provisions in various construction industry col- lective-bargaining agreements giving preference to qualified construction employees for work covered by other agreements which contain the same hiring hall procedures as the agreement under which the refer- rals originate do not enjoy the protection of Section 8(f) of the Act and therefore are unlawful. The Ad- ministrative Law Judge found that the criteria for job referral set forth in the disputed hiring hall provisions are not permissible under Section 8(f)(4) as that sec- tion has been interpreted by the Board in Interstate Electric Comp any.2 Respondents contend that the job referral criteria are allowable under that Decision. We find merit in Respondents' contentions. The essential facts regarding the hiring hall provi- sions are not in dispute. For the past several years Respondents have been parties to a number of collec- tive-bargaining agreements' with employers engaged Respondents' request for oral argument is hereby denied as the record, the exceptions, and the brietfs adequately present the issues and the positions of' the parties. 2 227 NLRB 1996 (1977) (I) Arizona Master I.abor Agreement between Associated General C(on- tractors (A(;(), Arizonia Chapter. Arizona Building Chapter. AG(': Home- builders Association of Central Arizona: and I.aborers' District Council of the State ofi Arizona, including l.ocals 383 and 479 (Laborers) Local 83. affiliate of the International Brotherhoid of Teamsters, Chauffeurs, Ware- housemen and Helpers f America Teamsters): and Operative Plasterers' and Cement Masons' International Association, Local Union 395 (Plaster- ers), effective June . 1973. through May 31. 1976 (2) Arizona Master Labor Agreement between AGC. Arizona Chapter; Arizona Building Chapter fAGC): Laborers Teamsters; and Plasterers, effective July 9. 1976, through May 31, 1979. 3) Labor agreements between Arizona Rock Products Asso- ciation and Teamsters. effective June I, 1973, through May 31, 1976. (4) Labor agreement between Arizona Rock Products Association and Team- sters. effective July 13, 1976, through May 31, 1979. Many employers in the State of Arizona are signatory to one of the above agreements by virtue of their membership in one of the multiemployer asso- ciations party to the agreements. Numerous other Arizona employers ex- ecuted memorandum agreements binding them to the terms and conditions of one of the above agreements. Other agreements, provisions of which are also at issue herein, were negotiated by individual parties. These are: (I) Agreements between Superlite Builders' Supply, Inc.; Dooley's Block Com- pany: Empire Block Co.:; University Block Company: and Laborers and Teamsters. effective October 15, 1973, through October 14, 1976. (2) Agree- ment between Owens-Corning Fiberglas. Supply Division, and Teamsters (Cement Block & Brick Plants agreement) effective September I, 1973. through Ma) 31, 1976 (3) Agreement between Owens-Corning Fiberglas, Supply Division, and Teamsters, effective June I, 1976, through May 31, 1979. (4) Interim agreement between Hydro Conduit Corporation and Teamsters, effective March I, 1975, through March 1. 1979. (5) Agreement between Ameron. Inc., and Laborers and Teamsters, effective March I, 1975, to March I, 1979. (6) Articles of agreement between O'Malley Pipe Company and Laborers and Teamsters, effective March 1, 1975, through March 1, 1978. (7) Labor agreement between Anzona Prestressed Concrete Co., and Tanner Prestressed Architectural Concrete Division of the Tanner Companies and Teamsters and Laborers, effective June 1. 1976. through May 31, 1979. 243 NLRB No. 26 328 (CONSTR1CTO11N, BUII.DING MATERIALS & MISC. DRIVERS. LOC. 83 in the business of construction, sand and gravel. pre- stressed concrete, block and brick, concrete pipe, and fiberglass. All of these agreements provide for the op- eration by Respondents of exclusive hiring halls. Each agreement contains virtually identical provi- sions concerning the basis for determining the order of preference for job referrals. Typical of these provi- sions is the following section of the Arizona Master Labor Agreements of 1973 76 and 1976-79: Group "A". Workmen who are properly qualified. (as hereinafter provided) whose names are properly registered, and who have been for- merly employed for a period of at least sixty (60) days by any individual Contractors signatory to the Master Labor Agreement in a craft covered by this Agreement or other agreements contain- ing this procedure between the Unions and other employers in the State of Arizona within the im- mediately preceding two (2) years. Individual Contractors may requisition a workman specifically by name from Group "A" for the same craft in which he was previously employed provided said workman is properly registered and available for such employment. Group "B". When Group "A" is exhausted, workmen who are properly qualified. (as herein- after provided) whose names are properly regis- tered, and who have been formerly employed for a period of at least forty-five (45) days by any individual Contractors signatory to this Agree- ment in a craft covered by the Master Labor Agreement in the State of Arizona within the past four (4) years or a qualified journeyman who has worked at his craft or trade as journey- man or apprentice in work of the type covered by this Agreement under a collective bargaining agreement for the past five (5) years, and who have been residents of the State for the immedi- ately preceding two (2) months. Group "C". When Group "B" is exhausted all other workmen who are properly qualified. (as hereinafter provided) whose names are properly registered and who are available for employ- ment.4 The parties stipulated, and we find, that on Sep- tember 12, 1974, Stanley J. Matuszak, a member of Respondent Teamsters, was told by Respondent Teamsters that he was being removed from its Phoe- nix, Arizona, hiring hall A list because he had not 4 See Appendix C for the provisions contained in other agreements at ssue herein. worked 60 days for a signatory employer within the past 2 years and therefore was not entitled to con- tinue A list registration. Matuszak was then placed. in the first position for referral on the B list of Respon- dent Teamsters Phoenix. Arizona. hiring hall. From September 12. 1974, until September 12, 1977. Matu- szak remained on the B list because he did not meet the requirements for the A list. During the period he was on the B list he obtained no employment through Respondent Teamsters hiring hall. The parties further stipulated, and we find, that Antonio J. Calles has been a member of Respondent Teamsters since 1960. From about 1970 until Decem- ber 1, 1976. he had been registered on the A list of Respondent Teamsters Phoenix. Arizona, hiring hall. On December I, 1976. Calles was placed on the B list of the hiring hall. Since his placement on the B list. he obtained no employment through Respondent Team- sters hiring hall. The Administrative Law Judge found, and the General Counsel concedes, that the foregoing con- tracts contain an express prohibition of any discrimi- nation due to union membership or lack thereof, and that Arizona is a right-to-work State which likewise forbids discrimination in employment based on union membership considerations. The issue, therefore. is whether, as alleged by the Gieneral Counsel, the em- ployment experience requirement for the A or B list referral priority is implicitly discriminatory because employees are penalized through reduced opportuni- ties for employmenl solely for the reason that then chose to work in the past for nonunion or nonsigna- tory employers. The (ieeneral ('ounsel contends that the disputed provisions are not perillissible under Section 8(f)(4) of the Act as that Section was interpreted by the Board in Interstate Electric (lman. .u xpra. In support of this contention the General Counsel stresses that In- /erstialte Electric held that Section 8(f)(4) permits pri- ority in referral based on length of service either with the employer or multiemployer association that nego- tiated the agreement under which the referrals will he made, or with employers who agree to be bound by such agreement while performing work within the union's area of geographical jurisdiction. The dis- puted provisions at issue herein, however. allow a re- ferral preference to employees previously employed by an employer who had agreed to be bound by a different agreement with the Respondent as long as it contains the same referral procedure as that pursuant to which the referral is made. Thus, the General Counsel argues, the provisions herein go beyond the permissible scope of Section 8(f)(4) set forth in the Interstate Electric decision. 329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the rationale of Interstate Electric ap- plies to the disputed provisions herein. Section 8(f)(4) of the Act provides, in relevant part, as follows: (f) It shall not be an unfair labor practice un- der subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement cov- ering employees engaged ... in the building and construction industry with a labor organization of which building and construction employees are members... because ... (4) such agreement ... provides for priority in opportunities for em- ployment based upon length of service with such employer, in the industry or in the particular geographical area. In Interstate Electric, we found that there is noth- ing in the legislative history of that section to suggest that the term "employer" was used as a term of art to define the specific employer whose employees the union represents in an appropriate unit. Rather, we found that a limited reading of the term "employer" would be unwarranted in light of the special allow- ances which Section 8(f)(4) makes for the employers and labor organizations in the building and construc- tion industry. We concluded that it is more consistent with the purposes of' that section to interpret the word "employer" as including any employer who, although not a member of the multiemployer association with which the union negotiated the collective-bargaining agreement, has agreed to be bound by such agree- ment while performing work in that union's area of geographical jurisdiction. Subsequently, in Mackey Plumbing C(o., we found lawful contract provisions basing priority in referrals on service with employer-members of the multiem- ployer association which negotiated the Arizona Pipe Trades agreement with the union there, employers who executed short-form agreements binding them to all of the terms of the Arizona Pipe Trades agree- ment, and employers who signed a national agree- ment whereby they agreed to be bound by such local agreements as the Arizona Pipe Trades agreement, which doing business in the locality. A similar result was reached in Bechtel Power Corporation.6 There the Board, citing Interstate Electric, reversed its earlier decision' and held lawful contractual provisions bas- ing priority in referral on, inter alia, experience with employers who signed an international agreement re- ' Local Union 469 of the United Associati on of Journnet men und Apprenti ies ofthe Plumbing and Pipe Ftting Industry of the United Sates mand Canda et at. (Mackey Plumbing Co.), 228 NLRB 298 (1977). 6229 NLRB 613 (1977). 1223 NLRB 925 (1976). quiring them to be bound by local agreements when doing work within the local union's jurisdiction. Thus, we have applied the rationale of Interstate Electric to construe the term "employer" in Section 8(f)(4) as including employers who are not signatory to the agreement establishing the hiring hall proce- dure (either as employers who negotiated the agree- ment or who executed short-ftrm agreements binding them to all its terms), but who have agreed to be bound by such agreement by virtue of being signatory to a wholly different national contract. We find the rationale of those cases to be equally applicable to the instant case. Here, the disputed hiring hall provisions base prior- ity in referral on, inter alia, experience with employers who are signatory to agreements containing the same or similar hiring hall procedure between Respondents and other Arizona employers.9 The principal differ- ence between the provisions here and those involved in Macke, supra, and Bechtel, supra, is that, in the latter cases, the preference was granted where the em- ployer had agreed to all other terms of the agreement pursuant to which referrals are made, while here, for work to be credited for the preference it need only be performed for an employer who has included the hir- ing hall provisions in an agreement which could oth- erwise be quite different. We fail to see how the fact that the employer is not hound to the specific agree- ment pursuant to which referrals are made warrants a finding that experience with such employer qualifies any the less as length of service for an "employer" as that latter term is used in Section 8(f)(4) of the Act. Thus, in Interstate lectric, we emphasized that Section 8(f') made special allowances for labor rela- tions in the building and construction industry. In enacting the section, Congress recognized that the oc- casional nature of employment in the industry gave rise to unique needs. One such need was the emplo- er's ability to "have available a supply of skilled 8 On petition or review o, the Board's Order in Bechtel, the Tenth Circuit reversed the Board's finding that the hiring hall provisions were lawful Re- ported sub nm Paul tH. Rhlcrtsonl s IR.B., 101 RRM 2160. 86 I.(' ¢11,293 (1979). In so doing. the court rejected the Board's analysis iof Sec. 8(f)(4) as set forth in Interstate Elettric We respectfully disagree with the lenih Circuit's hldilng and adhere t the positions we expressed in Inter- rtaie Elirimc and Bechtel, until such time as the Supreme Court has passed on the question. 9 The B list section of the hiring hall provisions makes reference t experi- ence under "a collective bargaining agreement" rather than to experience under the Master abor agreement or an agreement containing the same or similar hiring hall procedures. However. the parties stipulated that this sec- tion has been interpreted and applied by Respondents to allow registration on the B list to those employees who worked 45 days in the past 4 years for any employers signatory to the MI.A or to an agreement containing the same or similar hiring hall procedure. I here is no evidence that the B list has been enforced in any manner other than that described in the stipulation. Consequently. we shall treat both iof A and B lists as basing priority in referral on experience with employers signatory to the M LA or an agreement containing the same or similar hiring hall procedure. 330 CONSTRUCTION. BUIL.DING( MATERIAL.S & MISC. DRIVERS, O(C. 83. craftsmen ready for quick referral."' 0 To meet this need, Section 8(f) permits an exclusive referral system based on objective criteria such as seniority, resi- dence, or training. Here, Respondents negotiated agreements with numerous employers, each of which agreed to use a common pool of employees with simi- lar skills, as maintained by their respective hiring halls. The hiring hall provisions in each of these agreements meet the employers' need for a readily available supply of skilled labor. Further, the provi- sions established a referral system based on seniority, an objective criterion. That that seniority is deter- mined by length of service with any employers which agreed, under various contracts, to use the common labor pool does not render it any less objective than seniority which is determined on the basis of experi- ence with employers signatory to, or bound by, the agreement pursuant to which referral is made. In ei- ther case, the need for skilled labor is met, and the employer is assured of the competency of the referred employee by the employee's experience in the com- mon labor pool. For these reasons, we believe that it is consistent with the purposes of Section 8(f)(4) to construe that section as permitting priority in referrals to be based on length of service with an employer signatory to an agreement containing the hiring hall procedure of the agreement pursuant to which referrals are made. Ac- cordingly, we shall dismiss the complaint with respect to the hiring hall provisions in the Arizona Master Labor Agreement. 2. The Administrative Law Judge did not pass on the General Counsel's further contention that, even if Section 8(f)(4) is construed to permit the hiring hall procedure contained in the agreements at issue herein, Respondents have failed to show that many of the employers signatory to and bound by such proce- dures are primarily engaged in the construction in- dustry, a necessary prerequisite to invoking the pro- tection of Section 8(f)(4). Specifically, the General Counsel argues that the known employers signatory to the Arizona Rock Products agreement, the Cement Block & Brick Plants agreement, the Owens-Corning agreement, the Hydro Conduit agreement, the Ameron Pipe agreement, the O'Malley Pipe agree- ment, and the Arizona Prestressed Concrete agree- ment are not primarily engaged in the construction industry. We find merit in the General Counsel's con- tentions. The Act does not define the term "building and construction industry." However, the Board has dealt with the term in a number of cases involving the '°H. Report. 741, 86th Cong.. Ist sess.. I Leg. Hist. 759, 777 778 (1959). See also S. Rept. 187 on S. 1555. I Leg. Hist. 397. 424 425 (1959). question of whether an employer is qualified for an exemption under Section 8(f). In Carpet, inoleum and Sofi Tile Local No. 1-47,.' the Administrative Law Judge (then Trial Examiner) defined the indus- try, with Board approval, in the following manner: Within these various definitions, whether techni- cal, common, or legal, substantial consensus seems clear. Each formulation with respect to the so-called building and construction concept sub- sumes the provision of labor vwherehb materials and constituent parts nul be conmbined on the building site to form, make, or build a structure. These various factors, therefore, define the statutory "building and construction industry" with which we are concerned. Thus the Board has found that Section 8(f) applies to employers who provide both labor and materials for construction without regard to whether the greater amount of revenue comes from the labor or from the materials.'2 The exemption has also been applied to employers whose general business is not in the indus- try, but who are engaged in construction work on a specific project.' In addition, Section 8(f) has been applied to companies engaged in the general con- tracting business which involves employees working and performing services at construction sites, such as sheet metal contractors.'4 However, the 8(f) exemp- tion has been denied to employers whose business in- volves the manufacture of constuction materials which are installed by employees of a different em- ployer' 5 and to employers who have only a minimal involvement in the construction process.' We find that the employers involved herein fall within the lat- ter category of employers to whom the 8(f) exemp- tion does not apply. An examination of the contracts signed by these employers indicates that the employers are not en- gaged in construction work. The Arizona Rock Prod- ucts agreements of 1973-76 and 1976-79 were en- tered into by the Arizona Rock Products Association, a multiemployer association, and Respondents. The scope of coverage of the agreements is set forth in article A, as follows: It is the desire of the parties to this agreement that the conditions of said Agreements shall ap- ply only to bona fide commercial plant opera- tions, and will not be considered as applying to (Carpet, I.inoleum and Soft Tile Local NVo 1247 of the Brotherhood of Painters, Decorators and Paper Hangers of America, ,4 FL. CIO (Indto Paint and Rlg ('enter). 156 NLRB 951. 959 (1966). 2 Id at 960. Lidell Explorations. Inc. 175 NL.RB 887 (1969). n Barwise Sheet Metal (o.. Inc., a Division ft' ,4irtron, Inc. e al., 199 NLRB 372 (1972). '1 Forest Citv.Dllon-Tecon Pac/ic. 209 NLRB 867 (1974). 16 Frtc, (oompan. 141 NLRB 1204 (1963) 331 I)C('ISIONS OF NAIIONAI. I.ABOR RELAII()ONS BOARD job-site construction, sub-contract plant opera- tions, or the establishment of an operation for the primary purpose of servicing a particular job or project. The agreement further provides that "All construc- tion work shall he paid tor at the wage rates set forth in the Arizona Master Labor Agreement covering outside construction work." (Art. 11, sec. B). The labor agreement between Arizona Prestressed Concrete Co. and Tanner Prestressed Architectural Concrete. Division of Tanner Companies. and Re- spondents provides that the agreement shall not ap- ply to construction work. Article II, section A. states: The work covered by this Agreement shall be all the work usual or incidental to the production of Precast Concrete and/or Precast Prestressed Concrete and/or Architectural Concrete and/or modular building components including the con- struction, maintenance, repair and/or modifica- tion of production facilities within the technical or physical capabilities of the physical plant or work force. Article II, sections B,I, and B. 2. provides: I. All construction work shall be paid for at the wages set forth in the Arizona Master Labor Agreement covering outside construction work. 2. All modification work to existing facilities requiring additional craftsmen and/or workmen other than the Company's normal production, repair and maintenance crews, shall be paid at the wages set forth in the Arizona Master Labor Agreement covering outside construction work. The Hydro Conduit '7 Ameron Pipe, and O'Malley Pipe agreements cover work performed within the pipe plant operations and deliveries made from such plants. All three agreements contain the following provision regarding outside work: All outside work, other than work on bona fide agricultural systems installed or improved solely for agricultural purposes shall be worked under the terms of the Arizona Master Labor Agree- ment. On the basis of the foregoing provisions it appears that the Arizona Rock Products agreement, the Ari- zona Prestressed Concrete agreement, and the Hydro Conduit Ameron and O'Malley Pipe agreements ap- ply primarily to commercial manufacturing opera- tions which do not involve "the provision of labor whereby materials and constiruent parts mna be com- 1? Although by its terms the Hydro (onduit agreement appears to apply to both the Teamsters and the L.aborers. there is no indication that the agree- ment was ever signed by the Laborers. Accordingly. we shall treat the agree- ment as only being with the Teamsters. hited on the building ite to form, make, or build the structure."K common to the construction industry. Indeed, the agreements make clear that, if any such construction labor is performed, it must be compen- sated according to the provisions of the Arizona Mas- ter Labor Agreement covering outside construction work. Although there is some evidence that employees of these employers occasionally do installation work at the construction site, there is no indication whether such work is compensated according to the wage scale of the aforementioned agreements or of the Ari- zona Master Labor Agreement. Even assuming the wage scale of the Master Iabor Agreement did not apply, there is insufficient evidence to indicate that the work constitutes a significant enough portion of the employers' business to warrant a finding that the employer is primarily engaged in the construction in- dustry. For these reasons, we find that the 8(f) ex- emption does not apply to the employers signatory to the Arizona Rock Products agreement, the Arizona Prestressed Concrete agreement, the Hydro C('onduit agreement, the Ameron Pipe agreement, and the O'Malley Pipe agreement. While the Cement Block & Brick Plants agreement and the Owens-Corning agreement do not have provi- sions setting forth the scope of the contract, or mak- ing specific reference to construction work, these agreements nevertheless indicate that the primary op- erations covered by them are not within the building and construction industry. The Cement Block & Brick Plants agreement states in the recognition clause, article I. section A(a), that the Employers rec- ognize Respondents as the sole and exclusive bargain- ing agents: for all of their employees performing work within the plant operations mentioned above, and all deliveries made from such plants, with the exception of his office employees and super- intendents. The pleadings in the instant case describe the plant operations of two signatories to the Cement Block & Brick Plants agreement as involving manufacturing rather than construction work. Thus, it was alleged and admitted that Superlite Builders' Supply, Inc., is "engaged in the manufacture of cement block" and that Empire Block Company is "engaged in the manufactuie and sale of cement blocks." It was fur- ther alleged and admitted that a third signatory to the agreement. Dooley's Block Company, is "engaged in the manufacture of concrete block and the installa- tion of masonry fences." The installation of masonry is construction work, and might in different circum- m Indio Paint and Rug (enter. supra at 99. 332 ('()NSIRI('I'ION, B'll.l)lIN(; MAIERIALS & MISC'. RIVRS, 1.( )( 3 X stances warrant a finding that Dooley is in the build- ing and constriction industry. Hlere, however, there is testimony that Dooley is also signatory to the Ari- zona Master abor Agreement. Thus, it would ap- pear that its construction work is covered by the Mas- ter Labor Agreement and not by the Cement Block & Brick Plants agreement. The testimony supports this inference inasmuch as the installation of fencing is discussed in connection with the Master Labor Agreement. Consequently. even if Dooley is engaged in construction as well as manufacturing work, there is no indication that such work is covered by the con- tract at issue herein. Thus, with respect to its opera- tions covered by the Cement Block & Brick Plants agreement there is insufficient evidence to establish that Dooley is an employer primarily engaged in the building and construction industry. Similarly, Owens-Corning Fiberglas Corporation is alleged and admitted to be "engaged in the sale and distribution of fibrous glass materials." The record in- dicates that Owens-Corning has a contracting divi- sion which installs fiberglass materials and a supply division which is a warehouse sales operation. There is testimony that Owens-Corning has separate agree- ments for each division: the Master Labor Agreement covering the installation work, and the agreement at issue herein covering the warehouse operation. The agreement herein clearly applies only to the ware- house operation. It states that the agreement is be- tween Owens-Corning Fiberglas, Supply Division. and Respondent Teamsters. The recognition clause provides that Respondent Teamsters is the sole and exclusive bargaining agent for all employees in the classifications of "Truck Drivers less than 5 ton, 5 tons and over. End Lift Trucks and Ross Carrier. Semi and/or Truck and trailer-and warehouseman." Thus, we must conclude that the contract at issue herein does not cover construction work and that. for the purpose of this case. Owens-Corning Fiberglas, Supply Division. is not an employer primarily en- gaged in the building and construction industry. In view of our finding that the employers signatory to the Arizona Rock Products, Cement Block & Brick Plants. Owens-Corning, Hydro Conduit. Ameron Pipe, O'Malley Pipe. and Arizona Prestressed Con- crete agreements are not employers engaged primar- ily in the building and construction industry. it fol- lows that the hiring hall provisions in these agreements are not protected by Section 8(f)(4) of the Act. Respondents contend nevertheless that the provi- sions are lawful, even in the absence of the 8(f)(4) exemption, because they forbid discrimination on the basis of union membership and base preference in referrals on such objective criteria as length of service with signatory employers in a particular geographic area. Respondents cite L.ocnl 57, 7l',astcrx in sup- port of' this contention. We disagree. In ocal 35 7, 'eam.sters. supra, the Supreme (Court was presented with a hiring hall provision requiring that casual employees be employed on a seniority ba- sis according to a seniority list kept by the t:nion. The contract provided that "[sleniority rating of such employees shall begin with a minimum of three months service in the Industry. irrespective of whether such employee is or is not a member of the Union." ° 2 The Court observed that the Act deals with discrimination either b unions or by employers that encourages or discourages union membership. ('iting its decision in Radio Officers.21 the Court stated (365 U.S. at 675): It is the "true purpose" or "real motive" in hiring or firing that constitutes the test. Some conduct may by its very nature contain the im- plications of the required intent, the natural foreseeable consequences of certain action may warrant the inference. The Court fiound that discrimination could not be in- ferred from the face of the contract when there was a specific provision forbidding discrimination. Respon- dents argue that a similar finding must be made with respect to the contract provisions at issue here. There is, however. a significant distinction between the hiring hall provisions in l.ocal 357, Teaml.stcr.s and those presently before us. In 1.ocal 357, Teamsters, seniority was based on the neutral criterion of service in the industr. ere, in contrast, seniority is based on service with employers signatory to agreements with Respondents. As we observed in IA TSE, Local 657.22 the existence of a collective-bargaining agree- ment connotes representation by a labor organiza- tion. Thus. here, the contract provisions, on their face, indicate that seniority is based on union consid- erations. Under these provisions, an employee with greater experience in the industry may lose an oppor- tunity for referral to a lesser experienced employee solely because the lesser experienced employee worked for a signatory employer while the more ex- perienced employee did not. The provisions. there- fore. give rise to the inference that employees are dis- couraged from exercising their Section 7 right to work with a nonunion employer and are instead encour- I' lIwal I' . International Brotherhold Teanmsteri. ( haufleuri. Hi r' hausemen and Helpers o/ 4meitra /i.or Angt'les-Seatt' ts/olor iprc }s V 1. RB. 365 U S 667 (19611 20 Id at 668 21 The Radio Onfiri' Lniol t,/ the (mmer(s/al Tel'graphers (,ln, A.4. f L. IA H Bull Steamship, C(,mpan,/ . v I R B 347 .S 17 (1954) 22 International Photographers ol the M otiin Picture Industrie. Lo'al 650) oi the Intt'rnational A lance of Thealtrica/ Stage Enmpl e and Mring Pcture Mlachine Operators of the L niutd Siales and (anada MPO Tit if (Califirrnia Inc. ) A Producions. Inc . 197 NlRB I 187 (1972). 3 3 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD aged to work only with employers signatory to agree- ments with Respondent Unions. Thus, unlike the case in Local 357, Teamsters, the presence here of a non- discrimination clause cannot overcome this inference. Accordingly, we find that Respondents, by main- taining, enforcing, and giving effect to the hiring hall provisions of the Arizona Rock Products agreement, the Arizona Prestressed Concrete agreement, the Ce- ment Block & Brick Plants agreement, agreements with Ameron, Inc., O'Malley Pipe Company, and with respect to Respondent Teamsters only, the Owens-Corning Fiberglas, Supply Division. and Hy- dro Conduit Corporation agreements, have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(b)( I )(A) and (2) of the Act. REMEDY Having found that Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent Teamsters removed Stanley J. Matuszak and Antonio J. Calles from their Pheonix, Arizona, hiring hall A list because they did not meet the requirement of having worked 60 days for a signatory employer, we shall order that it make them whole for any loss of earnings they may have suffered by reason of its crediting, for purposes of A list eligibility, any time worked by employees for em- ployers signatory to the above-described agreements which we have found to be based on unlawful union membership considerations. All backpay, less net earnings, is to be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Compan'v, 90 NLRB 289 (1950), and shall include interest as pro- vided in Florida Steel Corporation, 231 NLRB 651 (1977).23 In addition to requiring Respondents to cease and desist from maintaining, enforcing, or otherwise giv- ing effect to the hiring hall agreements, found unlaw- ful herein, we shall order them to cease and desist from giving credit for purposes of determining prefer- ence in referral, on any of their Arizona hiring hall lists, for time worked by employees of employers sig- natory to the agreements in question. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that: "3See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962) Respondents urge, and the General Counsel agrees, that backpay is not owed for any period prior to the commencement of the 10(b) period. Accord- ingly, we find that the backpay period commenced on September 11, 1975. A. Respondent Construction, Building Materials & Miscellaneous Drivers, Local No. 83, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives shall: I. Cease and desist from: (a) Maintaining, enforcing, or giving effect to pro- visions of the Arizona Rock Products agreement, the Cement Block & Brick Plants agreement, the Arizona Prestressed Concrete agreement, and agreements with Hydro Conduit Corporation, Ameron, Inc., O'Malley Pipe Company, and Owens-Corning Fiberglas, Sup- ply Division, or to any modification, extension, or re- newal thereof, which grant preference in employment opportunities to applicants based on previous em- ployment with employers having collective-bargain- ing agreements with Respondent, and which discrimi- nate against applicants for employment because of lack of previous employment with employers having contracts with Respondent. (b) Giving credit, for purposes of determining pref- erence in referral on any of' its Arizona hiring hall lists, for time worked with any employers signatory to the agreements listed in paragraph l(a), above. (c) Causing or attempting to cause employers to discriminate against employees or applicants for em- ployment in violation of Section 8(a)(3) of the Act. (d) In any like or related manner restraining or co- ercing employees in the exercise of' their rights guar- anteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make Stanley J. Matuszak and Antonio J. Calles whole for any loss of earnings they may have suffered by reason of Respondent's crediting, for pur- poses of determining preference in referral, any time worked by employees for employers signatory to the agreements listed in paragraph l(a), above, in the manner set forth in the "Remedy" section of this De- cision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all referral and other records necessary to analyze and determine the amounts of backpay due under terms of this Order. (c) Post at all its business and employment referral offices and meeting halls in Arizona copies of the at- tached notice marked "Appendix A."24 Copies of said notice, on forms provided by the Regional Director for Region 28. after being duly signed by a represent- ative of Respondent, shall be posted by it immedi- 24 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 334 CONSTRUCTION, BUILDING MATERIALS & MISC. DRIVERS, LOC. 83 ately upon receipt thereof, and he maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered. defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. B. Respondent Laborers' District Council of the State of Arizona, affiliated with Laborers' Interna- tional Union of North America, AFI. CIO, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Maintaining. enforcing, or giving effect to pro- visions of the Arizona Rock Products agreement, the Cement Block & Brick Plants agreement, the Arizona Prestressed Concrete agreement, and agreements with Ameron, Inc., and O'Malley Pipe Company, or to any modification, extension, or renewal thereof: which grant preference in employment opportunities to applicants based on previous employment with employers having collective-bargaining agreements with Respondent, and which discriminate against ap- plicants for employment because of lack of previous employment with employers having contracts with Respondent. (b) Giving credit, for purposes of determining pref- erence in referral on any of its Arizona hiring hall lists, for time worked with any employers signatory to the agreement listed in paragraph ()(a). (c) Causing or attempting to cause employers to discriminate against employees or applicants for em- ployment in violation of Section 8(a)(3) of the Act. (d) In any like or related manner restraining or co- ercing employees in the exercise of their rights guar- anteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its business and employment referral of- fices and meeting halls in Arizona copies of the at- tached notice marked "Appendix B."25 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by a represent- ative of Respondent, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. 2' See fn. 24, supra (b) Notify the Regional Director for Region 28. in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 1 Is F'RrHE.R ORDEREDl) that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act other than those found above. MEMBER JENKINS, dissenting in part: For the reasons expressed in my dissent in Inter- state Electric Company. 227 NLRB 1996, I would find unlawful the hiring hall preference based on prior work under the union contract. APPENDIX A NOTICE To MEMBERS POSEI) BY ORDI)R O()F ilE NAIIONAI. LABOR RLAII()NS BOARI) An Agency of the United States Government WE WIl.L Not maintain, enforce, or give effect to provisions of the Arizona Rock Products agreement, the ('ement Block & Brick Plants agreement. the Arizona Prestressed oncrete agreement, and agreements with Hydro Conduit ('orporation. Ameron. Inc., O'Malley Pipe ('om- pany, and Owens-Corning Fiberglas, Supply Di- vision, that grant preference in employment op- portunities to applicants at our hiring halls having previous employment under our union contracts, and which discriminate against appli- cants at our hiring halls for lack of previous em- ployment under our contracts. WI wi I Not credit, for purpose of determin- ing preference in referral on any of our Arizona hiring hall lists. any time worked by employees of employers signatory to the above agreements. Wi. Vll I. N1 cause or attempt to cause em- ployers to discriminate against employees or ap- plicants for employment in violation of Section 8(a)(3) of the Act. WF WVI.I. Not in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE wiit. pay Stanley J. Matuszak and Anto- nio J. Calles for any loss of earnings they may have suffered by reason of our giving credit for the purpose of determining preference in referral on the A list for our Phoenix hiring hall, for any time worked by employees of employers signa- tory to the above agreements, plus interest. CoNSRUl( TION, BtII.l)tN(i MATERIAIS & MIScEI.I.ANEOUS DRIVERS, I.O(AI No). 83, AFFI.IAIEi) \WIIH INTERNAI'O()NAI. BR()IHER- HOOD))l) ) TEAMS TERS, CHAt.FFEL'RS, WARE- HO()SEMEN AN) HEI.PI-RS OF AMERIC A 335 DECISIONS OF NA FIONAI. LABOR RELATIONS BOARD APPENDIX B NoI(cI To ME:MBI:RS PO)S Il) BY ORI)IR 01; 'Ill1 NAIO()NAI IABO()R REL.ATIONS BOARD An Agency of the United States Government Wt vI.I NO1 maintain, enforce, or give effect to provisions of the Arizona Rock Products agreement, the Cement Block & Brick Plants agreement. the Arizona Prestressed Concrete agreement, and agreements with Ameron, Inc.. and O'Malley Pipe Company that grant prefer- ence in employment to applicants at our hiring halls having previous employment under our union contracts, and which discriminate against applicants at our hiring halls for lack oft' previous employment under our contracts. WE WII 1. NOr credit, for purposes of determin- ing preference in referral on any of our Arizona hiring hall lists, any time worked by employees of' employers signatory to the above agreements. Wi WVll.. NOl cause or attempt to cause em- ployers to discriminate against employees or ap- plicants for employment in violation of Section 8( a )(3) of the Act. W:V wil. NOt in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. LABORIRS' DIS I RI( I C)UN('CII. O: IltlM STA'I1, O() ARIZONA, AFII.IAI 11) WI 1ii LABORIRS' INlt RNAII()NAI. UNION ()I NORiti AMIR- I('A, AFL CIO APPENDIX C The Arizona Rock Products Association agreements of' 1973 76 and 1976-79 and the Arizona Prestressed Concrete agreement of 1976-79 contain the following referral proce- dure: (a) Workmen who are properly qualified (as hereinaf- ter provided) whose names are properly registered, and who have been formerly employed for a period of at least sixty (60) days by any individual employers signa- tory to this Agreement in a craft covered by this agree- ment or other agreements containing this procedure between the Unions and other employers in the State of Arizona within the immediately preceding two (2) years. (I) Individual employers may requisition a work- man specifically by name from Group (A) for the same craft in which he was previously employed provided said workman is properly registered and available for such employment. (b) When Group (A) is exhausted, workmen who are properly qualified, (as hereinafter provided) whose names are properly registered, and who have been for- merly employed for a period of at least forty-five (45) days by any individual employers signatory to this agreement in a craft covered by this agreement in the State of Arizona within the past four (4) years or a qualified journeyman who has worked at his craft or trade as journeyman or apprentice in work of the type covered by this agreement under a collective-bargain- ing Agreement for the past five (5) years and who have been residents of the State of Arizona for the immedi- ately preceding two (2) months. (c) When Group (B) is exhausted all other workmen who are properly qualified. (as hereinafter provided) whose names are properly registered and who are available for employment. The Cement Block and Brick Plants agreement of' 1973-76. the Hydro Conduit Corporation agreement of 1975 79, the Ameron. Inc. agreement of 1975 79. and the O'Malley Pipe C('ompany agreement of 1975 78 provide for the following order of' preferences for referral: Workmen who are properly qualified (as hereinafter provided), whose names are properly registered and who have been formerly employed or a period of' at least sixty (60) days by any Employers signatory to this Agreement, or contractors signatory to the Master la- bor agreement in a craft covered by this agreement or other agreements containing this procedure between the Unions and other employers in the State ol Ari- zona within the immediately preceding two (2) years. Employers may requisition a workman specifically by name from group "A" for the same craft in which he was previously employed provided said workman is properly registered and available for such employ- imcnt. When group "A" is exhausted, workmen who are properly qualified (as hereinafter provided), whose names are properly registered, and who have been fior- merly employed as a teamster or laborer for a period of at least forty-five (45) days by any Employer signatory to this agreement or any contractors signatory to the said Master Labor agreement in the State of Arizona within the past four (4) years or who has workers as a teamster or laborers in work of the type covered here- under or the Master Labor agreement within the past five (5) years. and who have been residents of the State of the immediately preceding two (2) months. When group "B" is exhausted, all other workmen who are properly qualified (as hereinafter provided), whose names are properly registered and who are available fbr employment. Finally, the Owens-Corning Fiberglas, Supply Division. agreements of 1973-76 and 1976-79 contain the following language, incorporating the hiring hall and referral proce- dures of the Arizona Master Labor agreement: ARTICLE X VI Hiring Htall The terms and conditions of the Hiring Hall and Dis- patching procedures set forth in article 10 of the Ari- 33 ('ONSI RUCION. BUILD.[)INGi MA'I RIALS & MIS(' DRIVIERS. I()'. 83 zona Master l.abor agreement are incorporated hby ret- erence and become a part of this agreement. copy attached hereto. Regardless of the above, in case of an emergency the Company may employ from an source available it' the union hiring hall is unable to fill the requisition for personnel promptly. DIECISION SI AlMENI (OF lilt ( ASI DAvII G. HI-Il.iRtN Administrative Law Judge: This case was heard in Phoenix. Arizona. on Februars 22 and 23, 1978. based on a certain amended consolidated com- plaint and single complaint in remaining Case 28 CB 1129. all as further orally amended upon opening of' hearing, which essentially alleged as common theory that Construc- tion. Building Materials & Miscellaneous Drivers. Local No. 83. affiliated with International Brotherhood of Team- sters, Chauffeurs. Warehousemen and Helpers of America called Teamsters, and Laborers' District C'ouncil of the State of Arizona, affiliated with laborers' International Union of North America, AFL CIO, called l.aborers, and these jointly called Respondents, violated Section 8(b)(I)(A) and (2) of the Act through maintenance and en- forcement of certain hiring hall procedures. Upon the entire record,' my observation of witnesses, and consideration of post-hearing briefs.' I make the fol- lowing: FINDINGS OF FA(C AND) RStIIANI C)N('I.S:Sl()N ()OF LA For nearly 20 years Respondents have operated exclusive hiring halls in the State of Arizona in furtherance of the construction, rock products (aggregate). cement block. con- crete pipe, and prestressed concrete products industries. Traditionally, such hiring hall provisions have appeared in associationwide collective-bargaining agreements entered into, and periodically renewed, with Associated General Contractors. Arizona Chapter, Arizona Building Chapter, Associated General Contractors. Home Builders Associ- ations of Central Arizona and Arizona Rock Products As- sociation.) These organizations, bargaining on behalf of their employer-members. enter into pertinent contracts. the I A joint motion of the parties to correct the record is granted. Addition- ally, I further correct the transcript in certain respects A second joint motion of the parties to accept additional exhibits is also granted. Finally. I note that inadvertently the onginal charge in Case 28 CB 1033 does not appear among formal papers of G.C. Exh. I, nor is it indexed there. I find this creates no impediment to the record, and deem the document as construc- tively present based on recitations of the amended consolidated complaint. 2 I note certain inadvertencies in the briefs of the General Counsel and Respondent. 'Employer-members of the associations Just named, operating at and out of business locations within the State of Arizona. collectively make annual purchases of goods and materials valued In excess of $50.000 which they cause to be transported and delivered to their places of business within Ari- zona directly from outside the state. I find that each of the named associ- ations. and Ior urisdictional purposes all employer-members bound to the collective bargaining agreements into which they enter. are employers within the meaning of Sec. 2(2). (6) and (7) o the Act, and that Respondents are each labor organizations within the meaning of Sec 25). most recent o' which covers the 1976 79 period.' I hese are commonly adopted by individu.tl emplo'er signatories, not themselves regular association members. The contractual language in question. ariation from which will be discussed separately, s appearing in the Ari- zona Master labor Agreement bietseen Respondents and AG(' chapters. reads as fiollows: Group "A". Workmen who are properly qualified, (as hereinafter provided) whose names are properly registered, and who have been ftrmerly employed for a period of at least sixty (16) days by ans indllidtual Contractors signatory to the Master abor Ageeiment in a craft covered by this Agreement or other agree- ments containing this procedure between the ulnions and other employers in the State of Arizona within the immediately preceding two (2) years. Individual (Contractors inla requisition a workmnan specifically by name from Group "A" for the same craft in which he was previously employed provided said workman is properly registered and available for such employment. Group "B". When Group "A" is exhausted. work- men who are properly qualified. as hereinafter pro- vided) whose names are properly registered, and who have been formerly employed fot a period of at least forty-five (45) days by ans' individual Contractors sig- natory to this Agreement in a craft covered bh the Master l.abor Agreement in the State of Arizona within the past four (4) years or a qualified journey- man who has worked at his craft or trade as journe - man or apprentice in work of the type covered by this Agreement under a collective bargaining agreement for the past five (5) years. and who have been residents of the State for the immediately preceding to (2) months. Group "("'. When (iroup "B" is exhausted all other workmen who are properly qualified. (as hereinafter provided) whose names are properly registered and who are available for employment. The Teamsters and Laborers operate hiring halls in Ari- zona cities, the chief of which for each is situated in Phoe- nix. At such premises a closely structured system of accept- ing, list-placing, referring, and monitoring (to the extent possible) job seekers is fulfilled. Work aspirants are evalu- ated upon their written summary of experience under the criteria of groups "A." "B." or "C." and entered on lists in chronological order. The listee signs for receipt of printed hiring hall rules. which are also prominently displayed for observant visitors. Except for a recent 2-year period. refer- rals flow from a Monday roll call at which employer re- quests are filled. Other than requisition for a particular per- son by name, as contractually allowed, placement procedure is to exhaust the "A." "B," and "C" lists in that order, and within lists by descending order of individual 4 urrently. this collective bargaining agreement is effective between Re- spondents. as contracting labor organizations, and A(GC(. Arizona Chapter with Arizona Building Chapter. . jointly as contracting employer asso- ciations. Until 1976. a point in time emhraced by the Sec 10(b) period of this case. the Home Builders Assoclation of Central Arliona was also party to the comparable predecessor Arizona Master Labor Agreement as . third, jointly contracting. employer association. 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing. An aspirant is not preferred by virtue of member- ship in either Teamsters or L.aborers. nor is union member- ship a separate beneficial factor while entertaining, classify- ing or referring any individual. Contractual language formerly in effect for jointly bar- gaining cement block and brick enterprises, and for con- crete pipe enterprises, track the master phraseology in all significant regards. Employers producing prestressed con- crete products were covered by the Arizona Rock Products Agreement until at least 1973. A bargaining separation oc- curred after that year resulting in Arizona Prestressed Con- crete Company and Tanner Prestressed Architectural Con- crete Division of the Tanner Companies, each a major prestressed concrete producer, jointly entering into a 3-year contract effective from 1976 with Teamsters. The wording of this agreement, and that of the current Arizona Rock Products Agreement, parallels language of the master agreement except for an individual's alternate means of qualifying for group "B" listing. In this instance, should the person not have 45 days qualifying employment within the past 4 years, they may nevertheless qualify by alternative showing of endeavors "at his craft or trade as journeyman or apprentice in work of the type covered by this Agree- ment under a collective-bargaining Agreement for the past five (5) years .... " A final variation in operative phraseolo- gy appears in a currently effective collective-bargaining agreement between Owens-Corning Fiberglas, Supply Divi- sion, and Teamsters, in which "[TIerms and conditions of the Hiring Hall and Dispatching procedures set forth in Article 10 of the Arizona Master Labor Agreement are in- corporated by reference and become a part of this Agree- ment."' In this general context Stanley Matuszak was removed from Phoenix' "A" list from September 12, 1974, until Sep- tember 12. 1977, solely because he did not meet the require- ments of having worked 60 days for a signatory employer within a past 2-year period. Antonio Calles. the second Charging Party similarly situated, was an "A" listee until December 1, 1976, on which date he was relegated to place- ment on Phoenix' "B" list. Beyond the focus on these two persons, evidence showed movement on and from the sev- eral lists during pertinent times. Both Teamsters and Labor- ers have on occasions referred "C" list registrants, and in- stances are present of individuals advancing from "C" to "A" list standing. Presented is the issue of whether recent Board decisions in Local Union No. 68. International Brotherhood o' Electri- cal Workers (Howard Electric Company), 227 NLRB 1904 (1977), and Interstate Electric Co., 227 NLRB 1996 (1977), are to be broadly or narrowly construed. The lead case, Interstate, supra, dealt squarely with a facially nondiscrimi- natory "2 in 4" years experience requirement for priority referrals to employers engaged in electrical construction work while members of an area chapter, National Electrical Contractors Association (NECA). Given key phraseology that couch the "2 in 4" requirement (a "I in 4" requirement in Howard Electric) supra in terms of employment "under a collective-bargaining agreement between the parties to this IThis employer escapes exclusivit of the hiring hall source if the union fails to produce personnel with promptness during emergenc agreement." the Board applied the length o service ith such employer language of Section 8(f)(4) of the Act as not involving a term of art limited to the specific employer "whose employees the union represents in an appropriate unit." Having so chosen, the Board expressly interpreted the statutory word "employer" (as underlined above) to in- clude "any employer who, although not a member of the multiemployer association with which the union negotiated the collective-bargaining agreement, has agreed to be bound by such agreement while performing work in that union's area of' geographical jurisdiction." While vigorous presentations were made in this case rela- tive to bargaining history, convenience to the parties, inter- changeability of tasks, skills utilized in both pure construc- tion and construction-related support operations, and the assiduously nondiscriminatory tone of the particular hiring hall system, I believe this litigation calls for a narrow hold- ing. This is so because, as was not the case in the even more recent Pllumbers decision,6 chosen contractual language goes beyond what the Board found allowable under illumi- nating legislative history and such practical recognition as has traditionally be accorded the hiring hall phenomenon. Aside from conjecture on how a now differently constituted Board might view this question,' here the contractual lan- guage compels a key distinction. This distinction is grounded in phraseology creating referral preference for construction employment: (1) under an' "agreements con- taining this procedure between the Unions and other em- ployers in the State of Arizona," or: (2) as to the Arizona Rock Products agreement simply under any "collective-bar- gaining Agreement." Considering how Interstate held most edifyingly that warrant of Section 8(f)(4) extended only to signatory employers themselves executing written assent to the fundamental association contract, I read its rationale as merging "bargaining unit" theory of applying Section 8(f)(4) into the more pragmatic point of whether given con- struction contractors have chosen to join the collective force represented by an employer association and, among various rights and obligations arising therefrom, subordinate their intrinsic right of personnel selection to the established me- chanics of an existing hiring hall. While granting that effi- ciency may obtain from the workings of these sophisticated hiring halls, the price would compromise plain strictures of Section 8(b)(2) as it relates to fundamental statutory pur- poses under Section 8(a)(3). Essentially, this fact situation goes well beyond Interstate, as here Respondent's have co- vertly elevated unionized employment to a role in conflict with the Act.' Local Lnion 4690 oJthe United Association of Journeymen and Apprentices of the Plumbing and Pipe Fittring Industry of the United States and Canada ('oarious Emplo/yers in the Construction Industry), 228 NLRB 298 (1977). This decision holds the rationale of Interstate and Howard Electric to be 'equally applicable." but only insofar as a "similar" (contrasted with identical) issue was presented * Interstate and Howard, in neither of which did Member Penello partici- pate (although doing so in Plumbers), overruled Nassau-Suffblk Chapter of the National Electrical Contractors' Association, Inc. and A lecap Electrical Cor- poration, 215 NLRB 894 (1974). on the precise point. Given Member Jen- kins' dissent in both now-controlling cases, and presence of new Member Truesdale, the doctrine involved remains essentially fluid. I note that in this right-to-work state. Arizona employment need not result in compulsory union membership. Since consequences ol unionism are broad in scope, ranging from significance of collective employee representa- 338 ('()NSIRL(CTI()N, BlI.I)N(i MAtIIRIAI.S & MIS( D)RIVERS. I.()( 83 The realistic result is to arhitrarily relegate work appli- cants to "("' listing, save onl' when their recent employ- ment history qualifies for better standing under the slanted criteria of "A" or "B." While 330 members in composite total or the current two chief contracting associations exist, and another approximately 500 (presumably including many traced to the Homehuilders Association of Central Arizona) are signatory, this ample number of construction employers does not address the inescapahle principle that certain employees may choose, or have previously chosen. to exercise Section 7 rights in working only t;or nonunion firms. From this it is unnecessary to deal definitively with evidence that relates to commonly owned enterprises or the extent to which driving and laboring duties are similar he- tween product lines industries both as to skills displayed and equipment used. The touchstone is ohjeclivi't of the criteria at root of the hiring hall systems, and here such criteria depart too far from what is permitted under the current stretch of Section 8(f)(4). Neither does it profit Re- spondents to demonstrate that unrelated industries under contract (alcoholic beverage delivery, steel hauling, mining. mining construction, hotel, grounds maintenance, etc.) do not represent qualifying experience lor group "A" or "B" listing. This characteristic serves to buttress the conceded lion to tangible economic features of trust benefit funds. the more limited matter of whether the labor organization may or may not he joined does noi neutralize such factors as reasonabhl) tend to be of discriminatory effecl as to encouragement of union membership relating to crucial opportunit\ fr hire into employment. This factor, so much as an. best tends to bring Respon- dents' cause under the protective shield of Lcal 35, Internaironal Brother- hood of Teamsters, ('hauffeurs. Wrehousemen and Helper of 4lmerica I.os Angeles-Seatle Motor Epress] v N.L R.B. 365 U.S. 667 (1961). ut that decision, as the General Counsel correctl) argues. allows exclusivity of a hiring hall without in an' way foreclosing eidence of unlawful effect. absence of discrimination based on membhership consider- ations, but cannot legitimize what is independently viola- tive of the Act.' In so holding. I further agree with the General ('ounsel that a customar, remed! ensue, with anN subsequent coln- trovers osver individual monetars loss to he resolved hs traditional backpay procedures. Accordingly. I renider a conclusion of law that Respondents, hb maintainiig en- tircing. and gi ing effect to the hiring hall provisiotls )ttf the Arizona Master I.abor agreement. the Arizona Rock Prod- ucts agreement, and to collective barga;ining agreelenllts with !y'dro-(onduit ('orporation, Amcron, Inc.. Arizona Prestressed C('oncrete ('o.. and Tailnner Prestressed Architec- tural ('oncrete Division of the anner Companies. jointl. and, formerly, with Homehbuilders Association of ('entral Arizona. and O'Malley Pipe Company and, further as to a collective bargaining agreement between Teamsters only and Owens-Corning Fiberglas Supply D[)iision. all of which grant or granted preference in employ ment opportu- nities to applicants based on previous employment with em- plovers who had collectise bargaining agreements with, and which discriminate or discriminated against applicants i'or employment because of lack of previous employnmeit with, employers who had contracts with them, have thus en- gaged, and are engaging. in unfair labor practices within the meaning of Section 8(hb) 1 )A) and (2) of the Act. [Recommended Order omitted from publication. As m essential rationale traces he "nilural and tloreseeahle conse- quence" test of The Rad, Ouftir' i'Uniosn o he Commercial 7le'grupher L'nion. 4 F 1. .4 II Bull Steiamnship ('ompssns] s ' lI.R. 347 t:.S 17 (1954), I see n nriecessar applicuion here of' Internanunal Phori.griaphcrs ! the .6Motion Picturc Industries, /I,/l i V 5, / the Intrmnatliona 4 Ih/in' sf/ he airieal and Stage mplq ees t fPO 71' o ('ahlfornma In, 4 Production Ins'). 197 NI.RB 1187 1972i. in context of the unlquels-regulaled construc- tion industr, 33g