Local Union 469, Plumbers, Et Al.

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union 469 of the United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Various Employers in the Construction Industry) and Carlos W. Green and Plumbing and Air Conditioning Contractors of Arizona, Party to the Contract Local Union 469 and Local Union 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Mackey Plumbing Co.) and Clarence W. Schmoll, Jr. and Plumbing and Air Conditioning Contractors of Arizona, Party to the Contract Mackey Plumbing Co. and Clarence W. Schmoll, Jr. and Plumbing and Air Conditioning Contractors of Arizona; and Local Union 469 and Local Union 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Parties to the Contract Local Union 469 and Local Union 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Mackey Plumbing Co.) and Roman M. Vasquez and Plumbing and Air Condi- tioning Contractors of Arizona, Party to the Contract Mackey Plumbing Co. and Roman M. Vasquez and Plumbing and Air Conditioning Contractors of Arizona; and Local Union 469 and Local Union 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Parties to the Contract Plumbing and Air Conditioning Contractors of Arizona and Clarence W. Schmoll, Jr. and Local Union 469 and local Union 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Parties to the Contract. Cases 28-CB-988, 28-CB-991, 28-CA-3703, 28-CB-1005, 28-CA- 3739, and 28-CA-3772 February 18, 1977 DECISION AND ORDER On June 7, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and supporting briefs and General Counsel also filed exceptions to the Administrative Law Judge's Deci- sion. The Board has considered the record and the attached 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. The complaint alleges, inter alia, that Respondent Locals 469 and 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry (hereinafter referred to collec- tively as Respondent Union or Union) and Respon- dents Mackey Plumbing Company (herein called Mackey) and Plumbing and Air Conditioning Con- tractors of Arizona (herein called the Association) unlawfully maintained and enforced the contractual hiring hall provisions set forth below, which give priority with respect to job referrals, layoffs, and supervisory positions to persons who had worked designated periods of time for contractors subject to the Union's collective-bargaining agreement with the Association. The Administrative Law Judge found that, by enforcing and giving effect to such a provision, Respondent Union and Respondents Mackey and the Association had violated Section 8(b)(1)(A) and (2) and 8(a)(3) and (1) of the Act, respectively. For the reasons discussed below, we disagree with that finding.2 The facts are not materially in dispute and may be summarized as follows: Mackey is a member of Plumbing and Air Conditioning Contractors of Arizona, an association of employers engaged in the plumbing industry which exists for the purpose, inter alia, of negotiating collective-bargaining agreements with the Respondent Union. The Association and the Respondent Union have, since 1951, negotiated successive collective-bargaining agreements known as the Arizona Pipe Trades Agreement, the most recent of which is effective from June 14, 1975, through June 30, 1978. This contract, like its prede- cessors, covers employees of the Association's em- I On November 11, 1976, General Counsel moved to reopen the record in this case for the purpose of consolidating it with a new one, Case 28-CB- 1064 Respondent Union and Respondent Association submitted briefs in opposition to the motion Inasmuch as the issues raised in the new case appear to be identical to those presented here, and in light of our decision herein, we shall deny the motion. 2 The complaint also alleges some independent 8(b)(1)(A) violations against the Respondent Union. We will affirm the Administrative Law Judge's dismissal of these independent 8(bXl)(A) allegations, pro forma, in the absence of exceptions thereto. 228 NLRB No. 36 LOCAL UNION 469, PLUMBERS, ET AL. 299 ployer members, including Mackey, as well as em- ployees of nonmember signatory contractors. The latter are plumbing contractors who, although not members of the Association, have agreed to be bound by the Arizona Pipe Trades Agreement by executing a short-form agreement. This short-form agreement binds such nonmembers in the same manner, and to the same extent, as it does the Association members. Article II of the most recent contract between the Union and the Association provides for the establish- ment and maintenance of an exclusive hiring system under the following provisions: Each dispatching office will maintain appropri- ate registration of workers based upon the length of time worked in the state for signatory contrac- tors at particular skills, it being the intent of the parties that priority in job opportunities to the extent allowed by law is herein established so as to assure the employers a reliable source of employ- ees experienced at the work standards in this area and so as to assure employees that as they grow older their long service in this area will not go unrewarded. Accordingly, when a contractor requisitions journeymen referrals will be made in the following order of preference: (a) "A" List. Workers being dispatched from within the jurisdiction of Local 469, [or 741 as the case may be], who are qualified for the job, who are available for work, who are then duly regis- tered as out-of-work at the dispatching office, and who have worked in such journeyman classifica- tions for signatory contractors of U.S. National Contractors in the State of Arizona for enough hours to be entitled to at least 10 years of service for purposes of benefit accrual (pension credits) in the Arizona Pipe Trades Pension Trust Fund, with at least 7 of the 10 years having been worked in the area and craft jurisdiction of [the appropriate local]. Paragraphs following the above provide for "B" and "C" lists in the same form, except that the years required for eligibility are 5 and 3, respectively. The "D" list of each local is the "A" list of the other local. The "E" list is comprised of all other journeymen. Article II also provides: LAY-OFFS. All employees referred off the "E" lists shall be laid off before persons referred off the "A", "B", "C" or "D" lists are laid off, except in case of discharge "A", "B", "C" or "D" employees for good cause. All employees referred off the "D" list shall be laid off before persons referred off the 3 When an employee is given "time off," he remains in the Company's employ but is taken off the payroll. "A", "B" or "C" lists, except in case of discharge of "A", "B" or "C" employees for good cause. All employees referred off the "C" list shall be laid off before persons referred off the "A" or "B" lists except in case of discharge of "A" or "B" employees for good cause. Article XIV of said agreement states in part: SUPERVISION: All foremen, general foremen, area superintendents and superintendents shall be dispatched from the "A" list and shall have worked at least one year within the last three years within the jurisdiction of Local Union No. 469 or Local Union No. 741. Employees Clarence W. Schmoll, Jr., and Roman M. Vasquez, both Charging Parties herein, had been in Mackey's employ since 1971. They had been referred to Mackey by the Union in 1971 and, inasmuch as they had accumulated only 3 years of prior service with Mackey, they were entitled only to "C" card status. On September 25, 1975, Mackey Superintendent Kenneth Johnson was informed by Respondent Union's business representative, Henry Olea, that a card check revealed that Schmoll was only a "C" cardman and therefore could no longer be Mackey's foreman since, under article XIV of the contract, foremen had to be selected from the "A" list. Although Mackey at first refused to demote Schmoll, it subsequently acceded to the Union's demands and, on October 6, 1975, replaced Schmoll with an "A" cardman referred by the Union. On October 17, 1975, Olea again contacted Johnson and asked him why "A" cardmen had been given "time off" while "C" cardmen were still on the payroll.3 Olea informed Mackey that it (Mackey) was obligated under the Arizona Pipe Trades Agreement to lay off "C" card employees Schmoll and Vasquez before laying off any "A" cardmen.4 Mackey then placed Schmoll and Vasquez on "time off" status over objections by the Union that they should be laid off. Subsequently, Mackey petitioned the Joint Labor Management Committee, composed of two representatives of the local union and two representatives of the contrac- tors, for a determination of the dispute. On October 31, 1975, the committee informed Mackey that under the agreement "C" cardmen must be laid off before "A" cardmen. Schmoll and Vasquez were laid off, i.e., terminated, on October 31, 1975. In finding that Respondents' hiring hall provisions violated Section 8(b)(1)(A) and (2) and 8(a)(3) and (1) of the Act, the Administrative Law Judge relied, inter 4 The term "layoff" as used herein is synonymous with "termination " 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alia, on Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc. and Alcap Electrical Corporation, 215 NLRB 894 (1974), in which the Board found a similar contract provision unlawful on its face. The Administrative Law Judge rejected Respondents' argument that the priority provisions in the hiring hall agreement are lawful under Section 8(f)(4) of the Act. He reasoned that Section 8(fX4) permits priority in referrals based on seniority or prior service with "the employer." He concluded, however, that the term "employer" in- cluded only the employer-members of the Associa- tion whose employees the Union represented in an appropriate unit and did not include "signatory" employers. The Administrative Law Judge therefore concluded that preference based on past service with employers who merely signed short-form agreements binding them to the Arizona Pipe Trades Agreement but who were not members of the multiemployer unit is not protected by Section 8(0(4). After the Administrative Law Judge issued his decision, the Board had occasion to reconsider its decision in Nassau-Suffolk. In its recent decisions in Interstate Electric Company, 227 NLRB No. 291 (1977), and Howard Electric Company, 227 NLRB No. 278 (1977), the Board was faced with a similar issue. The General Counsel in Interstate had argued that the term "employer" is a term of art limited to the particular employer or multiemployer association whose employees the union represents in an appropri- ate bargaining unit. The Board rejected this argu- ment, stating that "in light of the special allowances which Section 8(f) makes for employers and labor organizations in the building and construction indus- try, a limited reading of the term employer in Section 8(f)(4) would be unwarranted." Instead, the Board interpreted the word "employer" as including any employer who, although not a member of the multiemployer association whose employees the union represents in an appropriate unit and with which the union negotiated the collective-bargaining agreement, has agreed to be bound by such agree- ment. The Board therefore concluded that the referral system in question which gave applicants for referral preference based on their length of service with a signatory employer is valid, and, insofar as Nassau- Suffolk held otherwise, it was expressly overruled. We find the rationale of Interstate and Howard Electric to be equally applicable here. As in the latter cases, the signatory plumbing contractors herein executed short-form agreements binding them to all the terms of the Arizona Pipe Trades Agreement to the same extent as if they were members of the Association. As such these signatory contractors, along with the employer-members of the Association, comprise "the employer" within the meaning of Section 8(f)(4) of the Act. And, since Section 8(f)(4) of the Act specifically permits qualified employers and unions in the construction industry to enter into exclusive hiring hall contracts which give preference in referrals to applicants based on their length of service with "the employer," we find that Respon- dents did not violate Section 8(b)(1)(A) and (2) and 8(a)(1) and (3) of the Act by maintaining and enforcing the disputed hiring hall provision in their contract. Accordingly, and for the reasons more fully set forth in Interstate, supra, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: For the reasons expressed in my dissents in Interstate Electric Company, 227 NLRB No. 291 (1977), and Howard Electric Company, 227 NLRB No. 278 (1977), I would affirm the Administrative Law Judge's Decision finding the violations of Sections 8(b)(1)(A) and (2) and 8(a)(1) and (3) of the Act by maintaining and enforcing a contractual hiring hall which gave preference with respect to referrals, layoffs, and supervisory positions to persons who had previously worked for contractors who had signed agreements with the Union. The Administra- tive Law Judge correctly applied the existing prece- dents, the proper principles, and reached the correct result. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Phoenix, Arizona, on April 1 and 2, 1976.1 The charge in Case 28-CB-988 was filed on October 10 by Carlos W. Green (Green). The original charge in Case 28-CB-991 was filed on October 22 and the first amended charge was filed on November 7 by Clarence W. Schmoll, Jr. (Schmoll). The charge in Case 28-CA-3703 was filed on November 7 by Schmoll. The charge in Case 28-CB-1005 was filed on December 12 by Roman M. Vasquez (Vas- quez). The charge in Case 28-CA-3739 was filed on December 23 by Vasquez. The charge in Case 28-CA-3772 was filed on January 27, 1976, by Schmoll. On January 29, 1976, the Acting Regional Director of Region 28, National Labor Relations Board (Board), issued an order consolidat- ing all of the aforesaid cases, and issued a consolidated complaint alleging that Local Union 469 and Local Union 741 of the United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, hereinafter separately referred I All dates hereinafter are within 1975, unless stated to be otherwise. LOCAL UNION 469, to as Local 469 and Local 741, and collectively referred to as Respondent or Union , violated Section 8(b)(2) and (I)(A) of the National Labor Relations Act, as amended, (Act); that Mackey Plumbing Company, Inc., hereinafter referred to as Mackey, violated Section 8(a)(3) and (1) of the Act; and that Plumbing and Air Conditioning Contrac- tors of Arizona, hereinafter referred to as Association, violated Section 8(a)(3) and (1) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel, Local 469 and Local 741, Mackey and Association. Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent Mackey is now, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of Arizona. At all times material herein Mackey has maintained its principal office and place of business in Phoenix, Arizona, and has been engaged in business as a plumbing and air-condition- ing contractor in the building construction industry. During the past calendar year, which period is representative of its annual operations generally, Mackey, in the course and conduct of its business operations, purchased and caused to be transported and delivered to its Phoenix, Arizona, place of business goods and materials valued in excess of $50,000, which said goods and materials were transported and delivered to said place of business, and received from other enterprises located in the State of Arizona, each of which other enterprises had received said goods and materials in interstate commerce directly from States of the United States other than the State of Arizona. At all times material herein Respondent Association has been an association of employers , including but not limited to Respondent Mackey . Association exists for the purpose, inter alia, of engaging in collective bargaining on behalf of employer-members of Association with Local 469 and Local 741, negotiating collective-bargaining agreements, and resolving grievances arising in connection with collec- tive-bargaining agreements among employees of its em- ployer-members. Employer-members of Association are, and at all times material herein have been, engaged in business as plumbing and air-conditioning contractors. During the past calendar year , which period is representa- tive of their annual operations generally, employer-mem- bers of Respondent Association, during the course and conduct of their business operations, purchased goods and materials valued in excess of $50,000, and caused same to be transported in interstate commerce and delivered to their places of business in the State of Arizona directly from States of the United States other than the State of Arizona. PLUMBERS, ET AL. 301 I find that Mackey and Association are, and at all times material herein have been, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 469 and Local 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Association is comprised of three groups : the State of Arizona Association, its Phoenix chapter, and its Tucson chapter. Members of the Phoenix and Tucson chapters automatically are members of the state association. Local 469 has union jurisdiction over the northern half of Arizona ; Local 741 has union jurisdiction over the southern half of Arizona. The primary function of Association is to engage in collective bargaining with the plumbing unions in Arizona, on behalf of Association members. The agreement resulting from the bargaining is called the Arizona Pipe Trades Agreement. All members of Association are bound by the agreement, executed by appropriate officials of Associa- tion. Nonmember plumbing contractors, (sometimes called local independents), may agree to be bound by the Arizona Pipe Trades Agreement by executing a "short form" agreement to be bound, in which event such nonmembers become bound to the contract in the same manner as Association members. A separate organization exists, called National Construc- tors Association (NCA). NCA negotiates bargaining agree- ments with the International Union at the national level, on behalf of its members who do work on a national scale. This agreement is called the National Construction Agreement. The International Union negotiates other agreements on a national level : the National Pneumatic Control Systems Agreement between the International Union and the Pneumatic Control Systems Council ; and agreements between the International Union and independent national contractors, the terms of which are identical with those of the National Construction Agreement . Independent na- tional contractors may agree to operate under the National Construction Agreement without becoming members of NCA. All the aforesaid national agreements are negotiated independently of, and cover periods different from, Arizo- na local agreements negotiated by Association. The Na- tional Construction Agreement and the Pneumatic Con- trols Agreement contain provisions substantially different from the Arizona Pipe Trades Agreement, but the National Construction Agreement provides , among other things, that its signatories are bound by the referral practices in the local areas not inconsistent with the terms of the National Construction Agreement. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel stipulated that, during the month of January 1976, there were active employers in Arizona who contrib- uted to union pension funds, in the following numbers: 2 Association members 53 Independent signatories 89 NCA members 5 NCA independent signatories 10 National pneumatic signatories 3 The bargaining history between Association and the Union is of long standing - since 1951. The current agreement3 is effective from June 14, 1975, through June 30, 1978. The current Arizona Pipe Trades Agreement includes extensive provisions relating to establishment of an exclu- sive hiring hall, and maintenance thereof. Article II thereof states, among other things: Article II, Paragraph C, subparagraph 4 Each dispatching office will maintain appropriate registration of workers based upon the length of time worked in the state for signatory contractors at particu- lar skills, it being the intent of the parties that priority in job opportunities to the extent allowed by law is herein established so as to assure the employers a reliable source of employees experienced at the work standards in this area and so as to assure employees that as they grow older their long service in this area will not go unrewarded. Accordingly, when a contractor requisi- tions journeymen referrals will be made in the following order of preference: (a) "A" List. Workers being dispatched from within the jurisdiction of Local 469, who are qualified for the job, who are available for work, who are then duly registered as out-of-work at the dispatching office, and who have worked in such journeyman classifications for signatory contractors of U.A. National Contractors in the State of Arizona for enough hours to be entitled to at least 10 years of service for purposes of benefit accrual (pension credits) in the Arizona Pipe Trades Pension Trust Fund, with at least 7 of the 10 years having been worked in the area and craft jurisdiction of Local 469. "A" List. Workers being dispatched from within the jurisdiction of Local 741, who are qualified for the job, who are available for work, who are then duly registered as out-of-work at the dispatching office, and who have worked in such journeyman classifications for signatory contractors or U.A. National Contractors in the State of Arizona for enough hours to be entitled to at least 10 years of service for purposes of benefit accrual (pension credits) in the Arizona Pipe Trades Pension Trust Fund, with at least 7 of the 10 years having been worked in the area and craft jurisdiction of Local 741. 2 This is not a complete compilation of all plumbing employers in Arizona. Some employers do not contribute to the fund. Counsel further stipulated that, from June 14, 1975, to March 16, 1976, there were 666 referrals in Arizona to Association members, 409 to nonmember signatories, and 1214 to U.A. National Contractors. Paragraphs following the above provide for a B and C lists in the same form, except that the years required for eligibility are 5 and 3, respectively. The D list of each local is the A list of the other local. The E list is comprised of all other journeymen. Article II also provides: LAY-OFFS. All employees referred off the "E" lists shall be laid off before persons referred off the "A", "B", "C" or "D" lists are laid off, except in case of discharge of "A", `B", "C" or "D" employees for good cause. All employees referred off the "D" list shall be laid off before persons referred off the "A", "B" or .1c, lists, except in case of discharge of "A", `B" or "C" employees for good cause. All employees referred off the "C" list shall be laid off before persons referred off the "A" or "B" lists except in case of discharge of "A" or "B" employees for good cause. Article XIV of said agreement states in part: SUPERVISION: All foremen, general foremen, area superintendents and superintendents shall be dis- patched from the "A" List and shall have worked at least one year within the last three years within the jurisdiction of Local Union No. 469 or Local Union No. 741. Schmoll and Vasquez were employed by Mackey as journeyman plumbers on October 20, 1975. Schmoll has been a plumber since about 1950 and continuously worked for Mackey since August 2, 1971. Vasquez has been a plumber since 1957, and worked for Mackey since 1971. On September 25, 1975, Mackey's superintendent, Ken- neth Johnson (Johnson), was informed by Henry Olea (Olea), Local 469's business representative, that a card check revealed Schmoll was a "C-Card" worker and no longer could be a general foreman under the collective- bargaining agreement. Mackey resisted the Union's de- mand to replace Schmoll with an "A-Card" man, but ultimately acceded to Local 469's demands. Schmoll was replaced as general foreman with an "A-Card" man on October 6.4 The general contractor was concerned about this change, and Mackey was concerned that the removal of Schmoll possibly would constitute a breach of contract with the general contractor. On October 17 Johnson received a call from Olea who asked why "A-Card" men had been told to take time off when "C-Card" men still were on the payroll. Olea stated that, if "C-Card" men were not laid off rather than "A- Card" men, the Union would send the same number of time-off "A-Card" men to the jobsite each day to report to work and would require Mackey to pay each man 2 hours' reporting pay until the "C-Card" men were laid off. On October 20 an "A-Card" man, Mr. Register, reported for work at Mackey's jobsite and Mackey was required to pay Register for his showup time. On the same day, Olea demanded that Mackey lay off Schmoll and Vasquez 'because they were on the C list and Mackey was obligated 3 G.C. Exhs. 2 and 2(l). 4 The record shows, and it is found , that Schmoll was competent and that Mackey did not want to demote him; the only reason Schmoll was demoted was Local 469's demand. LOCAL UNION 469, PLUMBERS, ET AL. under the Arizona Pipe Trades Agreement to lay off all C men prior to the layoff or termination of any men on the A, list. On October 21 Vasquez and Schmoll were placed on "time off" status. The Union objected to that status, and demanded that the two men be laid off. Mackey petitioned the Joint Labor-Management Com- mittee under the Arizona Pipe Trades Agreement for relief, and on October 28 the committee decided that "C-Card" men must be laid off before "A-Card" men. The committee decision was received by Mackey on October 31, and Vasquez and Schmoll were terminated that day. Schmoll continued to receive general foreman's pay from October 6, 1975, until October 20, 1975 .5 Mackey thereafter reinstated the two employees pending Board determination of this matter. Schmoll returned to work on January 26, 1976, and Vasquez returned on February 9, 1976. Issues The basic issue is whether provisions relating to operation of an exclusive hiring hall under the Arizona Pipe Trades Agreement are unlawful. A second issue is whether certain statements alleged in the complaint were made as alleged and, if so, whether they constituted violations of Section 8(b)(1)(A) of the Act. A. The Arizona Pipe Trades Agreement The Arizona Pipe Trades Agreement explicitly establish- es a preferential, as well as exclusive, hiring hall system. It provides, inter alia: "it being the intent of the parties that priority in job opportunities . . ." shall be given "based upon the length of time worked in the state for signatory contractors at particular skills ...."8 It has been long established that some preference may be permissible in exclusive hiring hall arrangements , but it is equally well established that preference given in order to discriminate against employees solely for union purposes is a violation of the Act. The fact that the hiring hall provisions of the agreement are applied to the detriment of, and discriminatorily against, employees is shown by the actions taken against Schmoll and Vasquez, summarized above. Both employees. have enough years of work experience to qualify them for the A category of the agreement, but only enough of those years were worked in the language of the Arizona Pipe Trades Agreement, for "signatory contractors or U.A. National Contractors in the State of Arizona" to qualify Schmoll and Vasquez for the C category of the agreement. The Agreement specifically relates years of service to the Pension Trust Fund described in the Agreement, hence there is no question but what employment preference is based upon, and is a type of reward for, work performed on the payrolls of contributors to the fund. In the language of the Board in IATSE,7 at 1189: 5 Johnson credibly testified that Schmoll was paid as a foreman "in all fairness," and to reduce Mackey's exposure in the event the Union's position was unlawful 6 Art. II, par. C, subpar. 4. 303 [Respondent Union's] actions penalize employees for having exercised their statutory right to refrain from bargaining collectively through Respondent in the past, while rewarding those employees who have chosen to work in units represented by Respondent. Language of a contract similar to the one involved herein was considered by the Administrative Law Judge and the Board in Nassau-Suffolk. 8 That contract language was described (at 901 ) as follows: The agreement provides for a series of priorities or preferences in referral based on various criteria. To qualify for Group I (R-1), the highest category for referral purposes, an applicant for employment must have been employed for "at least one year in the last four years under a collective bargaining agreement between the parties of this Referral Procedure." Anoth- er criteria for classification in Group I is that the applicant must "have passed a journeyman's examina- tion given by Local #25 of the I.B.E.W. [the Union]," and to be eligible to take that examination, the applicant also must have had "one year [of work] in the last four years under a Collective Bargaining Agree- ment between the parties to this Agreement." In holding that language discriminatory and in violation of the Act, the Administrative Law Judge stated, with concurrence of the Board (at 903): The collective-bargaining agreement between NECA and the Union, and between the Union and nonmem- bers of NECA who have agreed to be bound thereby, undisputedly grants preference in employment opportu- nities to applicants who have worked as electricians for employers who had collective-bargaining agreements with the Union, and it diminishes the employment opportunities and discriminates against applicants with equal or even greater competence and experience merely because the latter have not worked for an employer who was under contract with the Union. The said agreement also denies eligibility for referral for one year to any registrant who works for an employer in the geographical area who does not pay the wage rates and fringe benefits contained in the agreement . Such dis- crimination has a natural tendency to encourage membership in the Union.42 The Respondent's collec- tive-bargaining agreement also "penalize[s ] employees for having exercised their statutory right to refrain from bargaining collectively through Respondent [Union] in the past, while rewarding those who have chosen to work in units represented by Respondent [Union]." 43 42 Radio Officers' Union v. N LR.B., 347 U.S. 17,44-45. Internation- al Union of Operating Engineers, Local 18, AFL-CIO (William F. Murphy), 204 NLRB 681 43 International Photographers of the Motion Picture Industries, Local 659, etc, 197 NLRB 1187. T International Photographers of the Motion Picture Industries, Local 659, IATSE, (MPO-TV of California, Inc., Y-A Productions, Inc), 197 NLRB 1187 (1972), cert. demed 414 U S 1157 (1974) 8 Nassau-Suffolk Chapter of the National Electrical Contractors' Associa- tion, Inc and Alcap Electrical Corporation, 215 NLRB 894 (1974). 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An Administrative Law Judge and the Board again considered similar language after Nassau-Suffolk. In Color- ite, Inc.,9 a violation of the Act was found and it was stated (at 610), inter alia: Thus it is clear that the preference in employment is not based on length of service with a particular employer or within a multiemployer bargaining unit, but rather on considerations of prior union representation. Respondent advances three arguments against the au- thority ofNassau-Suffolk and Colorize. A. It is argued that said two cases "do not accurately reflect the law," and Mountain Pacific 10 is cited as authority for the argument. Mountain Pacific primarily involved the question of possible inherent, or per se, abuse in exclusive hiring hall arrangements. The policy enunciated in Moun- tain Pacific was ended by the Supreme Courtin Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.LR.B., 365 U.S. 667 (1961), wherein it was held, among other things, "the only encouragement or discouragement of union membership banned by the Act is that which is `accomplished by discrimination: " The instant case does not involve a hiring hall, as such, in the manner of Mountain Pacific and Teamsters Local 357,• rather, it involves using a hiring hall in a discriminatory manner. Such a use falls squarely within the above-quoted statement by the Supreme Court in Teamsters Local 357. This argument is without merit. B. It is argued that Nassau-Suffolk and Colorize are distinguishable from the instant case. The distinctions covered by this argument refer to peripheral, rather than to controlling facts. Nassau-Suffolk, Colorite, and the instant case can be analyzed to show any number of background distinctions, but they are distinc- tions that result in no difference so far as the law is concerned. In all three cases there are involved contracts having exclusive hiring hall provisions, and work referrals based on preferences given solely for union aggrandize- ment. The fact that union membership as such is not the reason for preferences in this case is of no legal conse- quence. The preferences involved herein have as their ultimate goal the encouragement of union membership through discriminatory practices, and such preferences are violative of the Act, as described in Nassau-Suffolk and Colorite. This argument is without merit. C. It is argued that all employers utilizing the hiring hall in the instant case are within the same bargaining unit, and that, therefore, the requirements for permissible preferences described in Section 8(f) of the Act are met. Section 8(f)(4), which is the basis for this argument, was enacted to provide labor stability in the building and construction industry, which has labor requirements pecu- liar to that industry, particularly requirements relative to sporadic and relatively short-term employment. However, B Local Union No 77 of International Brotherhood of Painters and Allied Trades, AFL-CIO, 222 NLRB 607 (1976) 10 Mountain Pacific Chapter of the Associated General Contractors, Inc, et al, 119 NLRB 883 (1958), enforcement denied 270 F.2d 425 (C A. 9, 1959). 11 S. Rept. 187, 86th Cong., 1st Sess. 28 (1959). 12 IA TSE, supra 13 Morgan Linen Service, Inc., 131 NLRB 420 (196 1); Raymond0 Lewis, et al, 148 N LRB 249 (1964). the preferences permissible under Section 8(f)(4) are not intended to interfere with the proscriptions of the Act relating to preferences given solely to further union interests at the expense of employees. Section 8(f)(4) is not a relaxation of guiding legal principles; it is intended solely to express congressional intent so far as one industry is concerned. Thus, as argued by the General Counsel, that intent is to permit preferences in referral from exclusive hiring halls, based upon objective criteria.11 As shown by Nassau-Suffolk and Colorite, and as shown by the instant case, preferences given solely for past employment under union representation are based upon subjective, rather than objective, criteria. Those criteria clearly are outside the principles of the Act in general, and Section 8(f)(4) in particular.12 Respondent seeks to avail itself of the language of Section 8(f)(4) by contending that all employers who use hiring halls at Phoenix and Tucson, operated by Locals 469 and 741, comprise a single unit. Respondent argues that multiemployer bargaining is consensual in nature, which of course is true. However, it also is true, and long has been established in law, that the consent given so to be bound by multiemployer bargaining must be unequivocal.13 In the instant case it is clear that, not only are employers other than members of Association equivocal in their consent, they also go to considerable length to maintain their position outside the group unit argued for by Respondent. The record, including the testimony of Association's executive director (Stertz), shows that the "primary function" of Association is to engage in collective bargaining with the Union. The executive director clearly exhibited diligence and pride in Association's efforts to keep members and nonmembers abreast of negotiation developments throughout the year. Yet, more nonmembers use the hiring halls maintained by the Union than do members. If, as argued by Respondent, nonmember signatories intended that Association be their bargaining agent in a single unit for all purposes, they would become members of Association. Further, there is no evidence that other than a few nonmember signatories ever even attended bargaining sessions. Merely signing a short- form agreement does not result in the signer becoming a member of a multiemployer unit.14 Further, nonmember signatories here come and go in an independent and erratic manner. The record shows several instances wherein nonmembers, after having signed earlier short form agree- ments, later told Association they would "go non-union," or would decide at a later time whether they would sign a new agreement, or would work out their own agreement. Some later signed again, and some did not. Such indepen- dence is not compatible with the requirement that consent to be bound by multiemployer bargaining be unequivo- ca1.15 It is further noted that even the signing of a short- form agreement is an act of retroactive, rather than future, nature. The answer to this argument was well summarized by the Board in IATSE, at 1189: 14 Joint Council of Teamsters No. 42, international Brotherhood of 7 eam- sters, Chauffeurs, Warehousemen and Helpers of America (Merle Riphagen), 212 NLRB 320(1974). 15 Aside from the practice of the parties, the contract between Associa- tion and the Union clearly distinguishes between members and nonmem- bers, and defines the unit in terms of members. LOCAL UNION 469, PLUMBERS, ET AL. 305 The Trial Examiner considered it unnecessary to determine whether the employers involved constitute a multiemployer unit. We find that they do not, for the evidence shows that the Independent employers did not in fact comprise a part of a single unit for bargaining. Indeed, Respondent admits that the Independents were always given the option to negotiate separately if they desired. Furthermore, the Independents can refuse to be bound by any agreement negotiated by any multiem- ployer group, simply by not signing the resulting contract. It is not until the Independents have received the proposed agreement and discussed it that each Independent individually decides whether or not to become a party to the agreement. In addition, the Association has not been authorized to negotiate on behalf of any Independent employer. Accordingly, we find that the Independents are not part of a multiem- ployer unit. The Union contends that the language of the short-form agreement results in a multiemployer unit so far as nonmember local signatories are concerned, but that argument has been answered by the Board. In Gordon Electric,16 the Board held that the signing of a similar short form did not show an unequivocal intent to be bound in collective bargaining by group, rather than by individual action. The short form there involved stated, inter alia: I hereby authorize [N.E.C.A.] to act as my collective- bargaining agent with I.B.E.W. Local Union No. 11, and the N.E.C.A. bargaining representative unless notice of revocation of authorization in writing is given to the N.E.C.A. and the Union at least . . . 120 days prior to the expiration date of this agreement. Finally, the U.A. National Contractors clearly go their own way, independently of Association. They have their own association; they execute their own contracts; they do not advise Association when their membership changes; they do not notify Association concerning independent national signatories to the national agreements; they do not notify or consult with Association when they negotiate their own national contracts; their contracts differ from Association's contracts; they are free to ignore Association's bargaining negotiations and nearly always do. It is abundantly clear from the record that the national contractors do not consider themselves part of a multiemployer unit involving Association's members. Based on the foregoing it is found that the unit involved herein consists solely of members of Association. As argued by General Counsel, the most that can be said about nonmember signatories and U.A. national contractors is that they are involved in pattern bargaining.17 Under such circumstances it is clear, and found, that the requirements for the permissible preferences defined in Section 8(f)(4) of the Act are not met by Respondent, and that the facts of this case bring it within the ambit of Nassau-Suffolk and Colorite. Respondent argues that certain factual matters show that all employers involved herein, whether members or non- members of Association, or national contractors, are treated the same and thus comprise a single unit. Such matters include responsibility for assessments, policing of contracts, processing of grievances, and the handling of strikes and lockouts. However, these are contractual matters and, as shown above, being signatory to a contract does not alone result in becoming a member of a unit.18 Clearly here, contractual provisions are not coextensive with unit area. B. Alleged 8(b)(1)(A) Violation by Kenneth Brooks Paragraph 21(b) of the complaint states: On or about July 14, 1975, Respondent Union 469, by its agent, Kenneth Ray Brooks, at Respondent Union 469's hiring hall in Phoenix, Arizona, restrained and coerced employees of various employers in the construction industry in the exercise of their rights guaranteed in Section 7 of the Act, by informing said employees that the only reason they were permitted to work through Respondent Union 469's hiring hall was to take jobs union members did not want. Carlos Green (Green) testified that he is a welder and has worked through Local 469's hiring hall since May 3, 1973. He was on the D list until June 1975 , after which he was on the E list. Green was dispatched to a job in Snowflake, Arizona, about 160 miles northeast of Phoenix, in February 1975. He is not a member of the Union and he testified that he quit the Snowflake job July 11 because of "harassment and bad treatment" by union members . He said part of the reason for quitting was personal. Green testified that, on July 14, he went to the hiring hall and signed the work registry. He said he talked, while in the hall, with Ray Brooks (Brooks), assistant business agent and dispatcher for Local 469. Green stated: A. He called me to the window for a job referral, and told me that I couldn't quit the job at Snowflake. And I explained to him about the bad treatment that I was getting, and he said it didn't make any difference what kind of treatment I was getting ; that the only reason they let me work out of that local was to take the jobs that the union members didn't want. Q. What did you say to him? A. That I didn't want to work up there in those conditions. Green testified on cross-examination that there were about 200 people on the Snowflake job that had been referred by Local 469, including some from the A list. He said he had talked with Brooks in the past about quitting at Snowflake, and he wanted to obtain a reduction in force layoff in order that he could collect unemployment insur- ance. He said he wanted to quit because his wife was having difficulty with neighbors. Green testified that he did not get the reduction in force layoff he wanted, and that Brooks told him to stay on the job. Brooks testified that he talked with Green in June, when 16 Earl Gordon, d/b/a Gordon Electric Company, 123 NLRB 862 (1959) 17 Gordon Electric, supra 18 Texas Cartage Company, 122 NLRB 999 ( 1959), Chester County Beer Distributors Association, 133 NLRB 771 (1961) 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the latter wanted to quit the Snowflake job, and advised him not to quit because the only jobs then available were at Snowflake, and at sites far removed from Phoenix . Brooks denied he told Green that he was allowed to work only on jobs union members did not want. Discussion General Counsel's arguments in support of this charge are that Green should be believed rather than Brooks, and that Brooks' denial does not "withstand the light of day" because of the "overall pattern of illegality" involved in the hiring hall provisions. So far as credibility is concerned, Brooks is credited on the basis of observation of the witnesses and their demea- nor. Further, Green has been referred out of the hall many times during the past few years , and so far as the record shows there has been no problem in the past . This charge is doubtful because of its isolated nature, and the past course of conduct of the parties . Included in that conduct is the fact that, of 208 employees at the Snowflake job working out of Local 469 in July, approximately 184 were on the A list. Finally, Green's acknowledged conduct in an attempt improperly to collect unemployment insurance does not inspire confidence. The argument involving an "overall pattern of illegality" is not persuasive. First, no such pattern is shown; only some of the hiring hall provisions are involved, and the contract involves far more than a hiring hall. Second, illegality of some of the hiring hall provisions is not evidence that Brooks committed an 8(b)(1 XA) violation. General Counsel did not sustain his burden of proof on this allegation. C. Alleged 8(b)(1)(A) Violation by Jack Kienstra Paragraph 21(a) of the complaint states: On or about July 21, 1975, Respondent Union 469, by its agent, Jack Kienstra, at Respondent Union 469's hiring hall in Phoenix, Arizona, restrained and coerced employees of various employers in the construction industry in the exercise of their rights guaranteed in Section 7 of the Act, by informing said employees that they did not get overtime work and would not get overtime work because overtime work was reserved for union members. Green testified that I or 2 weeks after his conversation with Brooks, discussed above, he spoke at the hiring hall with Frank Porfiri (Porfiri), a union member. Jack Kienstra (Kienstra), business manager of Local 469, engaged in the conversation. Green stated: He asked me about the overtime in Snowflake, and I told him that I didn't know anything about that; I didn't get any, and I didn't expect any. And by that time Mr. Kienstra walked up and Frank asked him about the overtime, and Mr. Kienstra turned to me and said, "You didn't get any overtime up there and you're not going to get any overtime on any of these jobs. That's for bookholders and bookmen only." Kienstra denied making the statement attributed to him by Green and testified that the employer alone decides who will get overtime ; that the Union has no control of overtime. Kienstra was a forthright, impressive witness . His testi- mony relative to control of overtime is logical and convinc- ing. There is no background or course of past conduct to lend support to the alleged statement . Based on lack of corroboration of, or support for Green 's allegation, and based on observation of the witnesses and their demeanor, Kienstra is credited. The arguments of General Counsel in support of the discussion also were advanced in support of this charge, and equally are unconvincing here. General Counsel did not sustain his burden of proof on this allegation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondent Association and its employer-members de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom, and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Local 469 demanded that Mackey demote Schmoll from his position as general foreman; that Mackey demoted Schmoll as demanded ; that Local 469 demanded that Mackey discharge Schmoll and Vasquez; that Mackey discharged Schmoll and Vasquez as demand- ed; and that Mackey failed and refused to offer or to reinstate Schmoll and Vasquez because of contractual provisions found herein to be unlawful , I will recommend that Schmoll and Vasquez be made whole for any loss of earnings they may have suffered by reason of the discrimi- nation against them, by payment to them of a sum of money equal to the amount they normally would have earned absent the discrimination , less their net earnings during the said period or periods of discrimination, with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As mentioned above, the State of Arizona is divided by the Union into two areas of jurisdiction - north and south, respectively, administered by Locals 469 and 741. However, the hiring halls of the two jurisdictions are administered under a single contract, which provides preference based on LOCAL UNION 469, PLUMBERS, ET AL. union considerations within both jurisdictions. The remedy herein, therefore, treats the two locals as one. Since it is apparent that Mackey demoted Schmoll, and discharged Schmoll and Vasquez, against its own desires and only because of the insistence and demands made by Local 469, it is recommended that in those instances wherein a make-whole remedy is involved, the Union shall be primarily liable, and Mackey shall be secondarily liable.19 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondents Mackey Plumbing Co. and Plumbing and Air Conditioning Contractors of Arizona are employ- ers engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 469 and Local Union 741 of the United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada are labor organizations within the meaning of Section 2(5) of the Act. 3. By demanding that Mackey demote Schmoll from his 307 position as general foreman, and that Mackey discharge Schmoll and Vasquez because of unlawful contractual provisions, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act, and has restrained and coerced employees in the exercise of their rights guaranteed by the Act, in violation of Section 8(b) (1)(A) of the Act. 4. By maintaining, enforcing, and otherwise giving effect to an exclusive hiring hall contractual arrangement which gives preference in referrals and employment oppor- tunities to applicants for employment who have previously worked for employers who had collective-bargaining agree- ments with Respondent Union, and which discriminates against applicants for employment with equal or greater competence and experience only because the latter had not worked for an employer who had a contract with Respon- dent Union, Respondents Mackey Plumbing Co. and Plumbing and Air Conditioning Contractors of Arizona have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 19 J. Willis & Son Masonry, 191 NLRB 872 ( 1971); Bulletin Company, 181 NLRB 647 (1970).