Teamsters (Anheuser-Busch)

TEAMSTERS (ANHEUSER-BUSCH) 1097 Brewery Workers Joint Local Executive Board, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, and Local 153, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 843, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and An- heuser-Busch, Inc. Case 22-CB-4995 17 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 20 November 1984 Administrative Law Judge Howard Edelman issued the attached deci- sion. Respondents Local 153 and 843 each filed ex- ceptions and supporting briefs. The Company filed cross-exceptions and a brief in support of them and, in opposition to the Respondents' exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondents violated Section 8(b)(1)(A) and (2) of the Act by attempting to enforce through arbitration certain seniority pro- visions in their collective-bargaining agreement with the Employer. In so doing he declined to defer under the doctrine of Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984), to the decisions of arbitrators who upheld the Respondents' interpretation of certain contract language dealing with the application of the senior- ity provisions. The judge found that the seniority provisions on their face were clearly repugnant to the purpose and policy of the Act. The Respond- ents have excepted to both the finding of a viola- tion and the refusal to defer to the arbitration awards. For the reasons set forth below, we find that deferral to the awards is appropriate and we dismiss the complaint. The Employer has operated a brewery in Newark, New Jersey, since 1951. In 1953 the Re- spondents were certified as the collective-bargain- ing representatives of certain employees of the Em- ployer. The first contract and those thereafter until 1970 were negotiated by a multiemployer associa- tion of breweries in the Newark area to which the Employer had delegated its bargaining authority. This series of collective-bargaining agreements pro- vided for a multiemployer unitwide seniority system whereby "regular" employees out of work at any association member had the right to be hired by another member brewery in place of "casual" employees already employed. This was in effect a multiemployer bumping system. "Regular" employ- ees were those who had worked for a requisite time period2 at a brewery having a contract with the Respondents. "Casual" employees were those who had not yet done so. Both groups of employ- ees were subject to union-security clauses con- tained in each contract. As detailed in the judge's decision, the Employer withdrew in 1970 from the multiemployer associa- tion (which later disbanded) and thereafter negoti- ated collective-bargaining agreements with the Re- spondents applicable only to its own employees. The remaining two breweries in the Newark area, Pabst and Rheingold, also bargained with the Re- spondents on a single employer basis. As found by the judge, since the 1970s a common thread be- tween the Employer, the other Newark breweries, and the Respondents has been the fact that each separate collective-bargaining agreement retained the same seniority provisions and common seniori- ty lists. The 1981-1985 collective-bargaining agreement between the Employer and the Respondents pro- vides in pertinent part that "[w]hen a regular em- ployee who is laid off by another Company (de- fined as a Newark brewery with a collective-bar- gaining agreement with Respondents) is hired by Anheuser-Busch, he shall have no seniority rights except the right to work before casuals at An- heuser-Busch," and "A regular employee, upon loss of employment shall have the right to replace any (employee) who may be working as a casual employee. . . ." On, three occasions the Employer and the Re- spondents have taken issues involving the seniority provisions to arbitration. In 1977 Rheingold closed its Newark brewery. Pursuant to the Respondents' demand, the record shows that the Employer hired Rheingold's laid-off regular employees thereby dis- placing some of its own casual employees. An arbi- trator in 1978 upheld the applicability of the con- tractual seniority provision to the laid-off Rhein- gold employees and rejected the Employer's claim that the seniority clause be subordinated to the contractual racial nondiscrimination clause. I In asserting jurisdiction we correct the judge's inadvertent failure to cknowledge the undisputed complaint allegation that the Employer's 2 To become a "regular" employee required working for the same usiness exceeds the requisite jurisdictional amount of $50,000. brewery for 225 days in any period of 52 consecutive weeks 277 NLRB No. 118 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On 13 June 1983 another arbitrator upheld the Respondents' contention that 13 laid-off Pabst reg- ular employees, hired by the Employer in 1981, could continue to assert their seniority rights with the Employer beyond the time they had originally been scheduled to return to Pabst. The record re- veals that in neither the 1978 nor the June 1983 ar- bitration did the Employer contend that the main- te,nance and enforcement of the seniority provisions constitute an unfair labor practice. The most recent arbitration involved two Pabst regular employees who voluntarily resigned in 1981 and then sought employment with the Em- ployer. Contrary to the Employer's contention, the arbitrator ruled on 13 August 1983 that voluntary resignations are encompassed within the contrac- tual language conditioning reciprocal seniority rights on "loss of employment at the other Compa- nies. . . ." The Employer was thus required to place the two former Pabst employees on its own seniority list and the arbitrator ordered the Em- ployer to employ them. The arbitrator further con- sidered the Employer's argument that upholding the grievance would result in a violation of the Act and ruled that the cases relied on by the Employ- er3 were distinguishable as explained below. The judge declined to defer to the arbitration awards because he found that the collective-bar- gaining agreement's seniority provisions gave pref- erence to employees of other breweries who have gained longer experience not in the industry with any employer but rather with a signatory to a con- tract with the Respondents. The judge reasoned that because the seniority provisions are based on union membership rather than on a neutral crite- rion they are unlawful under Section 8(b)(1)(A) and (2) of the Act. Since, in his view, the arbitra- tor's legal conclusions were inconsistent with Board law as set forth in Typographical Union No. 6 (Royal Composing Room), 242 NLRB 378 (1979),4 Stage Employees IATSE Local 659 (MPO-TV), 197 NLRB 1187 (1972),5 and Teamsters Local 83 (AGC), 243 NLRB 328 (1979), the judge found the awards "clearly repugnant to the purpose and policy of the Act." We find merit in the Respondents' contention that the arbitration awards are not clearly repug- nant to the principles and policies of the Act. As we stated in Olin, in determining if an arbitrator's award is clearly repugnant under Spielberg, the test to be applied is not whether the award is "totally consistent with the Board precedent." Rather, we 8 The names of these cases are not cited in the arbitrator's awards. 4 Enf denied in relevant part 632 F.2d 171 (2d Cir. 1980). 5 Enfd 477 F.2d 450 (D.C. Cir. 1973), cert. denied 414 U.S 1157 (1974). require only that the award be susceptible to an in- terpretation consistent with the Act. When that re- quirement is met we find the award not "palpably wrong" and we will defer. The arbitrator, whose award issued in August 1983 considered the unfair labor practice issue as to whether the contractual seniority provisions are based on an impermissible criterion.6 He found that all regular employees of the employer with collec- tive-bargaining agreements with the Respondents are union members and all casual employees are similarly subject to the union-security provisions. Since, in his view, all layoff and bumping decisions are based on seniority, rather than on union mem- bership, the arbitrator found this neutral criterion lawful. The arbitrator apparently considered the cases analyzed by the judge and found them inap- posite in that the Board had found unlawful con- tractual provisions which prevented a job applicant from obtaining initial employment unless he had prior employment with a union signatory employ- er. Here the collective-bargaining agreement deals with what seniority rights an employee acquires after working in a represented unit. The issue before us is not whether we would reach the same conclusion on the statutory issue, as did the arbitrator, but whether the General Coun- sel has met her Olin burden of showing that the ar- bitrator's analysis is palpably wrong as a matter of law. Here the arbitrator construed the language of the parties' collective-bargaining agreement in light of the facts surrounding the efforts of two Pabst regular employees to invoke bumping rights over the Employer's casual employees. Since the arbitra- tor found that only individuals already employed 6 The judge erred in stating that the arbitrator "disavowed deciding" the unfair labor practice issue. The following excerpt from the arbitra- tor's award makes evident that the arbitrator was presented with and ad- dressed the statutory issue: Regarding the Company's assertion that an upholding of the griev- ance`here would result in a violation of the National Labor Relations Act as amended, I would comment that such eventuality, if so, would be determined in a different forum. As I read the contract, I am without power to modify it and I believe that would be the result if I were to deny the grievance. Any possible violation of the Act, if such were to result, would have to be handled elsewhere to avoid a violation of my authority under the contract I would further comment that over the years the NLRB has, in many areas , changed positions, sometimes with rapidity However, I do not believe the ar- gument of the Employer here is persuasive regarding a violation of the Act inasmuch as the cases cited do not seem to be on all fours with the instant matter Here I do not read the contract as calling for preference because of Union membership but rather because of em- ployment with Employers covered by collective bargaining agree- ments with the Joint Local Executive Board providing for reciprocal treatment of employees of the Employers Here the result is that preference will be given to individuals who because of employment by Employers covered by collective bargaining agreements have at- tained regular employee status because of the length and type of em- ployment as opposed to casual employees who have not enjoyed similar employment This is far different, I believe, from the kinds of discrimination found impermissible by the NLRB in the cases cited. TEAMSTERS (ANHEUSER-BUSCH) and subject to the union-security clause were af- fected, he concluded that the application of the se- niority provisions neither operated to encourage union membership by means of discrimination nor restrained employees in the exercise of their Sec- tion 7 rights. We note that similar reasoning was employed by the Second Circuit in denying en- forcement of the Board's order in New York Typo- graphical Union No. 6. We find that the General Counsel, in relying on arguably distinguishable Board cases, has failed to demonstrate that the arbitrator's interpretation, based on a full consideration of the 8(b)(1)(A) and (2) issues, is repugnant to the Act. Accordingly, we shall defer to the August 1983 award and dismiss the complaint in its entirety. ORDER The complaint is dismissed. Susan K. Anderson, Esq., for the General Counsel. Emil Oxfeld, Esq. (Rothbard, Harris & Oxfeld, Esqs.), for Respondent Local 843. Paul A. Montalbano, Esq. (Schneider, Cohen & Solomon, Esqs.), for Respondent Local 153. Edward R. Ryan, Esq. and Irving L. Hurwitz, Esq. (Car- penter, Bennett & Morrissey, Esqs.), for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on May 30, 1984, in Newark, New Jersey. On December 12, 1983, Anheuser-Busch, Inc. (the Employer), filed a charge against the Brewery Workers Joint Local Executive Board, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Respondent Joint Board) and its Locals 153 and 843, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Respond- ent Local 153 and 843, respectively), alleging that the above-named Respondents engaged in violations of Sec- tion 8(b)(1)(A) and (2) of the Act. On January 26, 1984, a complaint issued alleging that the above-named Re- spondents (collectively Respondent), required the Em- ployer, pursuant to provisions in the collective-bargain- ing agreement between the parties, to give preference in hiring to out-of-work "regular" employees who are sig- natories to collective-bargaining agreements with Re- spondents and to layoff, if necessary, "casual" employees hired by the Employer in violation of Section 8(b)(1)(A) stnd (2) of the Act. Briefs were filed by counsel for the General Counsel, :ounsel for the Employer, Local 843 and counsel for 1099 Local 153.1 Upon my consideration of the entire record, the briefs, and my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT The Employer is a corporation with facilities located throughout the United States, including a facility located in Newark, New Jersey. The Employer is engaged in the brewing, sale, and distribution of malt beverages. The Employer annually, in the course and conduct of its normal business operations purchases and receives goods, products, and materials at its Newark, New Jersey facili- ty directly from points outside the State of New Jersey. It is admitted and I find that the Employer is engaged in commerce within the meaning of Section- 2(2), (6), and (7) of the Act. It is admitted and I find that Respondent Joint Board, Respondent 153, and Respondent 843 are labor organiza- tions within the meaning of Section 2(5) of the Act.2 In 1951 the Employer first opened its Newark, New Jersey facility. In 1953 Respondent Joint Board was cer- tified as the collective-bargaining representative in a unit of the Employer's production workers, warehousemen, bottlers, drivers, stockhandlers, and porters. Since 1953 Respondent has represented the Employer's employees in this unit. For several years prior to 1953, the New Jersey Brew- ers Association and employer association of breweries in the New Jersey area represented its member-employers in collective bargaining. It bargained and executed con- tracts on a multiemployer basis with Respondent Joint Board which represented the employees of its members. Following certification of Respondent Joint Board, the Employer joined the N.J. Brewers Association and au- thorized it to represent it in collective bargaining with Respondent Joint Board. Thereafter, until 1970, all bar- gaining concerning the Employer's employees in the above unit was through the N.J. Brewers Association on a multiemployer basis. One of the provisions of the foregoing agreements, in- cluding the 1967-1970 agreement, established preferential employment rights throughout the above multiemployer unit by providing, in substance, that a "regular" employ- ee, upon loss of employment for any cause other than stealing, at one brewery had the right to be hired by an- other prior to "temporary" or "casual" employees or in place of any "temporary" or "casual" employees already employed. To attain regular status at the brewery at which the employee was employed and thereby have preferential employment rights at another brewery upon loss of em- i All counsels are to be complimented on the quality of their briefs They were uniformly well written and well researched. They were most helpful to me in writing this decision. 2 Respondent Joint Board, which is comprised of Respondent Locals 153 and 843 and Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America was served with a copy of the charge and complaint. It filed no answer and did not make an appearance at the trial of this case. Under these circumstances I con- clude that Respondent Joint Board is liable for the violations described below jointly and severally with Respondent Locals 153 and 843. Pinter Bros, 263 NLRB 723, 724 fn 1 (1982). 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployment, the employee must have worked for the same brewery for 225 days in any period of 52 consecutive weeks. An employee working less than this required period of time was classified as a "temporary" or "casual" employee. By 1970 the Employer had expanded and became a na- tionwide operation, with facilities in Los Angeles, Cali- fornia; Tampa, Florida; Houston, Texas; Columbus, Ohio; Jacksonville, Florida; and Merrimack, New Hamp- shire. As a result of the Employer's expansion to this na- tionwide operation, the International Brotherhood of Teamsters, through its National Conference of Brewery and Softdrink Workers, requested that the Employer engage in national or multiplant bargaining for all its breweries in place of the previous separate bargaining at each facility. The Employer, after initial resistance, even- tually agreed to such multiplant bargaining and entered into an agreement with the Teamsters which provided that the parties would establish nationwide, multiplant bargaining. On January 15, 1970, Employer Executive Vice Presi- dent R. A. Meyer sent a letter to Raymond Schoessling, national conference secretary-treasurer, which set forth that although the Employer had agreed to bargain on a national basis for all its breweries, it preferred to contin- ue bargaining on a single plant basis in Newark where the Employer bargained through associations on a multi- employer basis. On January 2, 1970, various Teamsters locals, includ- ing Respondent Joint Board, passed a resolution which reaffirmed the desire for national negotiations and "urged [the Employer] to take all necessary steps including withdrawal from the Association in Newark . . . in order to effectuate such negotiations." Shortly thereafter, the Employer agreed to the Team- sters request to cease single plant, multiemployer bar- gaining in Newark. The Employer wrote the N.J. Brew- ers Association and Respondent Joint Board notifying them that they were withdrawing bargaining authority from the Association and would no longer be represent- ed by it in any negotiations with Respondent Joint Board. Within a short time thereafter, the N.J. Brewers Association itself ceased to exist for labor relations mat- ters. Sometime thereafter, the Essex Brewers' Labor Rela- tions Association (the Essex Brewers' Association) was formed. The Employer became a member of the Essex Brewers' Association.. However, the Employer never au- thorized the Essex Brewers' Association to bargain for it. The facts establish that since 1970, no employer associa- tion has represented the Employer in collective bargain- ing with Respondent Joint Board, and the Employer has not bargained jointly with any other employer concern- ing its employees represented by Respondent Joint Board. Since 1970, all Employer-Respondent Joint Board contracts have been solely between the Employer and Respondent and have been applicable only to the Em- ployer's employees. The executive secretary of the Essex Brewers' Asso- ciation was Thomas Hayes. As such, he conducted the fourth step of the Employer-Respondent grievance pro- cedure and maintained lists of " regular" employees. The Employer and Respondent, at times, used the Essex Brewers' Association offices for negotiations and Hayes kept minutes. Hayes retired in 1981 and thereafter became a consult- ant. As such, he is employed by the Employer to con- duct fourth-step grievance hearings and to act as a con- duit for the exchange of information between the Em- ployer and Pabst Brewing Company, the only other brewery presently remaining in the Newark area. Pabst also bargains with Respondent on a single employer basis. The above-noted national bargaining between the Em- ployer and Teamsters in 1970 resulted in an agreement effective from 1970 to 1973. This agreement continued the Employer's pre-1970 pension contributions to the New Jersey Brewery Employees Pension Trust Fund. During 1973 negotiations, the Employer and Respondent agreed that the Employer would establish its own pen- sion plan and the 1973-1976 agreement so provided. Ac- cordingly, on July 23, 1973, the Employer withdrew from the New Jersey Brewery Employees Trust Fund. The 1970-1973 agreement and the 1973-1976 agree- ment continued the pre-1970 provision for welfare bene- fits for the Employer's employees by employer contribu- tions to the New Jersey Brewery Employees Welfare Trust Fund. In negotiations for the 1976-1979 agree- ment, the Employer and Respondent agreed to replace the New Jersey Brewery Employees Welfare Trust Fund with the Employer's own welfare plan and the 1976- 1979 collective-bargaining agreement so provided. Ac- cordingly, on January 28, 1976, the Employer withdrew from the New Jersey Brewery Employees Welfare Trust Fund. Thus at the expiration of the 1976 agreement, the only common thread running between the Employer, the other New Jersey breweries (Pabst and Rheingold), and Respondent was that Hayes was a common arbitrator at fourth-step grievances and the common seniority lists and preferential hiring provisions in issue and discussed below. Between 1970 and continuing through the current col- lective-bargaining agreement, all Employer-Respondent agreements contained the following provisions:3 Unless otherwise provided herein to the contrary, "other Companies" as used in this Agreement shall mean Pabst Brewing Company and any other Com- pany who becomes a member of the Essex Brewers' Labor Relations Association and a party to their collective bargaining agreement with the Union. When a regular employee who is laid off by an- other Company is hired by Anheuser-Busch, he shall have no seniority rights except the right tc work before casuals at Anheuser-Busch. A regular employee, upon loss of employment' shall have the right to replace any porter, stock handler, or laboratory technician, who may b 3 Arts. 0.3, 4.3-1, 4.3-3, and 4 10 of the current collective-bargamir agreement between the Employer and Respondent TEAMSTERS (ANHEUSER-BUSCH) working as a casual employee, except those on the Company seniority roster. The foregoing provisions made applicable to em- ployees of other Companies with respect to employ- ment rights at Anheuser-Busch of regular employ- ees, senior checkers, porters and stockhandlers shall be effective provided that the collective bargaining agreement between the Union and the Essex Brew- ers' Labor Relations Association and the other Companies contains the same standards as set forth in this Agreement for attaining regular employee status and senior porter, checker & stockhandler status and provides the same employment rights for regular employees, senior porters and stockhandlers of Anheuser-Busch, Inc. As of 1976 Respondent's agreements with Pabst and Rheingold contained similar provisions. In 1977 Rheingold closed its brewery. Respondent claimed that laid-off Rheingold employees who had at- tained "regular" status under the Rheingold-Respondent agreement were entitled to preference over "casuals" employed by the Employer in that they had a right to work prior to "casuals" and in lieu of "casuals." It was Respondent's position that if the Employer needed addi- tional employees, those employees had to be Rheingold "regulars" rather than the Employer's "casuals." Thus, if the Employer had "casuals" working, the Rheingold "re- gulars" had the right to replace them. Pursuant to Re- spondent's demand, the Employer did hire Rheingold "regulars," thereby displacing its "casual" employees. The Employer took exception to Respondent's demand and the parties agreed to arbitrate the issue. During that arbitration, it was Respondent's position that: (I)ndustry-wide regulars have the contractual right to preference in employment over casual employees ... the right of regular employees to such jobs as against so-called casuals and temporaries has been absolute, rigorous and continuous. Arbitrator John J. Pearch issued his award on January 19, 1978, as follows: Under the terms of the collective bargaining agree- ment, the Company, on application, must give em- ployment to industry regulars on industry-wide un- attached regulars when the Company has in its employ, or in the selection for employment, casual employees. In November 1981 Pabst shut down its operation for 1 week, laid off most of its work force, and scheduled all employees to return to work the following week. During the week of the Pabst shutdown, the Employer abided by Respondent's demand that it employ, in place of its "casuals," the Pabst employees who had achieved "regu- lar" status under the Pabst-Respondent agreement. At the end of that week, the Employer laid off the Pabst "regulars," who, with the exception of 13 Pabst regulars, returned to work at Pabst. As to these 13 Pabst regulars, they decided to waive their recall rights to Pabst and 1101 remain with the Employer. Respondent, by Frank Jack- iewicz, its secretary, notified the Employer of this posi- tion. The Employer refused. Respondent grieved and the matter was arbitrated. In that arbitration, it was Re- spondent's position that the 13 Pabst "regulars" had a right to work at the Employer before any "casual" em- ployees. On June 13, 1983, an arbitrator issued his award holding that the Employer should have employed the Pabst regulars prior to employing its casual employes. On September 11, 1981, two Pabst regulars voluntarily submitted letters of resignation to Pabst. They sought employment with the Employer which would have re- sulted in the replacement of two casual employees. The Employer refused. The issue was arbitrated. In the arbi- tration hearing, Respondent stated that "it is the long- standing arrangement that regular employees are pre- ferred in employment over casuals." On August 3, 1983, the arbitrator issued his award that the resigned Pabst re- gulars had priority over casuals and ordered the Em- ployer to employ them. Subsequently, Respondent, by Jackiewicz, demanded that the Employer comply with this award. The Employer did so, causing the displace- ment of two of its casual employees. In March 1984 a meeting was held between the Em- ployer and Respondent during which Jackiewicz de- manded that several additional laid off Pabst regulars be employed by the Employer and that the Employer dis- place casuals who were then working. Paul Charrier, manager of employee relations, testified that the replacement of casuals by regulars of other em- ployers is a particularly troublesome issue at present be- cause of the Employer's present policy of recruiting and training new employees who will be casuals until they can complete their 225 days, in anticipation of replacing a large number of their regular complement of employ- ees who will soon be retiring. Thus, the Employer wants to be able to hire and train a new work force and not have such program derailed by having to replace these trainees with other regular employees laid off from other breweries. Analysis and Conclusions The Board has consistently held that preferences to employees based on the seniority of union membership accumulated through employment with a signatory em- ployer violates Section 8(b)(1)(A) and (2) of the Act. In Typographical Union Local 6 (Royal Composing Room), 242 NLRB 278 (1979), . nf. denied in relevant part 632 F.2d 171 (2d Cir. 1980), the Board held that in the ab- sence of a multiemployer bargaining unit, a preference based on an employee's employment in a shop under contract with the union was directly related to union membership and discriminates against nonmembers in violation of Section 8(b)(1)(A) and (2). See also Nassau- Suffolk Chapter of the National Electrical Contractors Assn., 215 NLRB 894 (1974), vacated and remanded on other grounds 556 F.2d 76 (D.C. Cir. 1977), supp. opin- ion 231 NLRB 1021 (1977), enfd. in part 586 F.2d 959 (2d Cir. 1978). In Stage Employers JATSE Local 659 (MPO-TV), 197 NLRB 1187 (1972), enfd. 447 F.2d 450 (D.C Cir. 1973), 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cert. denied 414 U.S. 1157 (1974), an employer associa- tion bargained and had a collective-bargaining agreement with the union. The contract gave preference in hiring to individuals listed on an industry roster. Employers who were not members of the association had separate bar- gaining agreements with the union. These agreements contained the same employment preference provision as the association agreement. The agreements provided that only individuals having work experience with employers who were signatories to one of the aforementioned agreements could be placed on the roster. The Board held that the union had violated Section 8(b)(1)(A) of the Act, stating: Respondent's actions penalize employees for having exercised their statutory right to refrain from bar- gaining collectively through Respondent in the past, while rewarding those employees who have chosen to work in units represented by Respondent. [Id. at 1189.] The union attempted to justify the preference provision by contending that all employers, in effect, formed a multiemployer bargaining unit for seniority purposes. The Board rejected this contention, specifically pointing out that nonassociation members had not authorized the association to bargain for them, but negotiated separately with the union. The Board further rejected the union's contention that even if a multiemployer bargaining unit did not exist, there was still no violation because the se- niority provision giving hiring preference was unrelated to union consideration and merely protected the "integri- ty of the bargaining unit." In this connection, the Board held that the preference provision, even though articulat- ed in terms of "seniority," did not regulate the acquisi- tion of seniority rights after working in a union- repre- sented unit but, rather, prevented an applicant from ob- taining initial employment unless he had prior employ- ment with a union signatory employer. Under these cir- cumstances, the Board concluded the union was denying employment to individuals based on union membership considerations. See also Directors Guild of America (Motion Picture & Television Producers), 198 NLRB 707 (1972), enfd. 494 F.2d 692, 709 (9th Cir. 1974), and Paint- ers Local 77 (Colorite, Inc.), 222 NLRB 607 (1976). In Teamsters Local 83 (AGC), 243 NLRB 328, 333-334 (1979), a contract provision gave employees a hiring preference based on service with employers who had union contracts. Noting that basing seniority on service with signatory employers is significantly different than basing it on service in the industry (a neutral criterion), the Board found 8(b)(1)(A) and (2) violations, stating: [T]he contract provisions, on their face, indicate that seniority is based on union considerations. Under these provisions, an employee with greater experience in the industry may lose an opportunity for referral to a lesser experienced employee solely because the lesser experienced employee worked for a signatory employee while the more experienced did not. The provisions, therefore, give rise to the inference that employees are discouraged from exer- cising their Section 7 right to work with a nonunion employer and are instead encouraged to work only with employers signatory to agreements with Re- spondent Unions. The thread that runs through all the above-cited cases is that, notwithstanding actual discrimination, such pref- erential provisions are inherently discriminatory as they encourage membership. The provisions in the collective-bargaining agreement between the Employer and Respondent are indistinguish- able from those of the above-cited cases. In this connec- tion, the Agreement itself provides for the displacement of casuals. Thus, article 4.3-1 provides: When a regular employee who is laid off by an- other Company is hired by Anheuser-Busch, he shall have no seniority rights except the right to work before casuals at Anheuser-Busch. [Emphasis added.] Similarly, article 4.3-3 provides that "A regular employ- ee, upon loss of employment, shall have the right to re- place . . . [a] casual employee." (Emphasis added.) It has been Respondent's consistent position, as evidenced by the arbitrations described above, that these provisions be applied pursuant to the agreement. The result of such provisions is that employees of other employers have rights "to work before" and "replace" the Employer's casuals. Thus, the evidence establishes conclusively that the Employer's casual employees, as a result of the agree- ment's provisions, Respondents' demands, and the arbi- trations, are subject to and have been displaced from em- ployment by employees of other Respondent signatory employers. This is unlawful discrimination under the Act because the preference is given to employees of other breweries who have gained longer experience, not in the industry with any employer, but rather with a signatory to a contract with Respondent. This gives a preference based on union membership which is unlawful. Respondent contends that even if a multiemployer bar- gaining unit does not exist, the contract provisions in issue are not discriminatory because any preference is based on seniority and not union membership. In this connection Respondent argues that the casuals and regu- lar employees of other signatory employers are all mem- bers of Respondent and therefore a demand that a regu- lar employee employed by an employer signatory replace a casual employed by the Employer is based on seniori- ty. However, the same contention was raised by the union in the IATSE case, supra, and rejected by the Board. The basis of that rejection can be illustrated by a hypothetical example applied to the instant case. Assume a situation in which an employee with 10 years' experi- ence in the brewery industry in the Midwestern part of this country and employed by a brewery whose employ- ees are not represented by Respondent, transfers his resi- dence to the Newark, New Jersey area and is hired by the Employer with the expectation that he will become a regular employee after he works the 225-day casual re- quirement. Pursuant to the present provisions in issue, such employee could be replaced by a regular employee TEAMSTERS (ANHEUSER-BUSCH) of a signatory employer with less than 10 years' seniority with such signatory employer and in the industry. Such preference clearly tends to encourage membership in Re- spondent. See Teamsters Local 83, supra, which distin- guishes between seniority obtained through service with a signatory employer and seniority based on service in the industry . When the applicable seniority is based on service with a signatory employer, as in the instant case, such preference is based on membership in a union` 'and violates the Act. Respondent contends that the contract provisions in issue are not preferential because the Employer is part of a multiemployer bargaining unit. If the Employer were part of a multiemployer bargaining unit it would appear that Respondent's contention would have merit. Typo- graphical Union Local 6, supra. This is because the pref- erence would be based on seniority based on service in the unit, rather than service with a signatory employer in another unit. However, based on the facts of this case, I conclude that the Employer is not a part of the multiem- ployer bargaining unit as contended by Respondent. Participation in multiemployer bargaining is by con- sent only. As stated by the Board in Ruan Transport Corp., 234 NLRB 241, 242 (1978): The Board has consistently held that "the essential element warranting the establishment of multi-em- ployer units is clear evidence that the employers un- equivocally intend to be bound in collective bar- gaining by group rather than by individual action. The collective standard for excluding an employer from such a unit is evidence of an intent to pursue an individual course of action with respect to labor relations." As a general rule, the Board has found that an employer does not become a part of a multi- employer bargaining group (i.e., it does not intend to be bound by group bargaining) where it merely adopts a collective-bargaining agreement in the ne- gotiation of which it did not actually participate and which it did not authorize another to negotiate on its behalf. See also Tampa Bay Area Glazing Contractors, 228 NLRB 360, 361 (1977), wherein the Board held: "It is well set- tled that the Board will find a multiemployer unit appro- priate only where employers evidence clear intent to participate in such a bargaining arrangement!' (Foot- notes omitted.) In the instant case, Respondent is certified in a bar- gaining unit limited to the Employer's employees. The Employer withdrew its consent to participate in multi- employer bargaining in 1970 and thereafter its participa- tion in Newark ceased . Respondent was fully aware of the Employer's withdrawal from the multiemployer bar- gaining because it demanded such withdrawal through its participation in the insistence on national bargaining with the Employer in 1970. Since then the Employer and .espondent have executed separate collective-bargaining agreements applicable only to the Employer's employees. 3y 1976 the Employer had withdrawn from Respond- nt's pension and welfare funds. From this time to the resent the only common contract provisions between 1103 the Employer and other employers with whom Respond- ent had a contract were the grievance provisions and se- niority provisions . Moreover, since 1977 the Employer had disputed the legality of the seniority provisions as evidenced by the arbitrations described above. Clearly there was no intent by the Employer to be bound within the meaning of Ruan Transport Corp., supra. What does appear to exist is separate contracts with other breweries (Pabst being the only other brewery at the present time) which have the same grievance and seniority provisions. This is sufficient to establish an intent to be part of a multiemployer unit. In Gordon Electric Co., 123 NLRB 862 (1959), the Board held that the employer was not a part of a multi- employer unit despite the facts that the Joint Electrical Industry Committee was empowered to consider griev- ances not resolved by the parties to the contract; prefer- ence was given to electrician apprentices previously em- ployed "by employers of a multiemployer unit in Los Angeles county"; the Vacation Plan Committee was composed of three members of the Association and three members of the union, and the "Joint Apprenticeship Committee" consisted of Association members and union representatives. In Typographical Union Local 6, supra, the Board held that independent employers were not part of a multiemployer unit although they agreed to be bound by the terms of the negotiated contract, contribut- ed funds established by League contract, implemented agreement concerning automated equipment , and had equal benefits distributed relating to hiring hall and train- ing and income benefits for displaced employees. See also Ted Hicks & Associates, 232 NLRB 712 (1977), enfd. 572 F.2d 1024 (5th Cir. 1978). Accordingly, I conclude that since 1970 the Employer has made Respondent aware of its intention not to be part of a multiemployer unit and has reinforced this posi- tion since 1970 by its withdrawal from the pension and welfare plans and by contesting by arbitration the legali- ty of the seniority provisions. I therefore conclude that since 1970 the Employer has not been part of the multi- employer unit as contended by Respondent. Respondent contends that the Board should defer to the Rheingold and Pabst arbitrations. Deferral to an arbitration award is appropriate if (1) the proceedings be fair and regular; (2) all parties agree to be bound by the award; (3) the decision is not repug- nant to the purpose and policy of the Act; and (4) the issue of the involved unfair labor practice issue be pre- sented to and be considered by the arbitrator. Spielberg Mfg. Co., 112 NLRB 1080 ( 1955); Suburban Motor Freight, 247 NLRB 146 (1980); NLRB v. General Ware- house Corp., 643 F.2d 965 (3d Cir. 1981). Applying these standards to the instant case I conclude that the provi- sions in issue are, on their face, clearly repugnant to the purpose and policy of the Act. They are, as a matter of law, unlawful within the meaning of the Act. In this con- nection, the arbitrator in the Pabst arbitration disavowed deciding the unfair labor practice issue stating: "Any possible violation of the Act, if such were to result, would have to be handled elsewhere to avoid a violation of my authority under the contract." I 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon these circumstances, I conclude deferral would be inappropriate. Olin Corp., 268 NLRB 573 (1984); Inland Steel Co., 263 NLRB 1091 (1982); Port Chester Nursing Home, 269 NLRB 150 (1984). Respondent further contends that the proceeding is barred by Section 10(b). In this regard the Board held in Stage Employees IATSE Local 695, 261 NLRB 590, 592 (1982): Where a contract with an allegedly illegal clause has been in existence for longer than the 6-month period preceding the filing of a charge, the Board has held that an interpretation or application of the contested contractual provisions by means of an ar- bitrator's arbitral award is a reaffirmation, renewal of reassertion of the contract and is an operative event which is susceptible to challenge within 6 months of its occurrence. Here, the Pabst arbitration issued within the 10(b) period. Moreover, during this period Respondent Repre- sentative Jackiewicz demanded that the Employer comply with the award and employ Pabst "regular" em- ployees. Accordingly, I find this contention to be with- out merit. CONCLUSIONS OF LAW 1. The Employer is an employer within the meaning of Section 2(2) of the Act and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to enforce, through the Pabst arbitra- tion, the seniority provisions contained in its collective- bargaining agreement with the Employer, Respondent violated Section 8(b)(l)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found Respondent has engaged in the unfair labor practices described above, it will be recommended that it cease and desist therefrom, and to bargain in good faith, on demand, with the Employer for a new collec- tive-bargaining agreement. [Recommended Order omitted from publication.]