Local Union 469, Plumbers, Et Al.

National Labor Relations Board - Board Decisions

Feb 18, 1977

228 N.L.R.B. 298 (N.L.R.B. 1977)

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 Con struction 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).