632 F. 2d 171 - National Labor Relations Board v. New York Typographical Union No

The National Labor Relations Board (the "Board") petitions pursuant to § 10(e) of the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. § 160(e) (1976), for enforcement of an order requiring the New York Typographical Union No. 6 (the "Union" or "Local 6") to, inter alia, cease and desist from maintaining and enforcing certain hiring hall procedures. The challenged procedures, adopted pursuant to a contract between respondent on the one hand, and the Printers League Section of Printing Industries of Metropolitan New York, Inc. (the "League") and approximately fifty non-League employers (the "Independents") on the other, establish an order of preference in job referrals for various groups of workers, and give first preference to "journeymen and apprentices working or seeking work in Book and Job shops under Contract" with the Union on the effective date of the contract. The Board found that the League members and the Independents did not constitute a single bargaining unit, and that the referral procedures give preference on the basis of prior employment in shops under contract with the Union rather than on the basis of seniority within a single bargaining unit; it concluded that these practices restrain and coerce employees in the exercise of rights guaranteed by § 7 of the NLRA, in violation of § 8(b)(1)(A), and discriminate against non-union employees in violation of § 8(b)(2). The Board's rulings invalidating certain of the job referral preferences have not been challenged by the Union, and are thus entitled to enforcement.

As to the findings of the Board that have been challenged here, we conclude that the record does not contain substantial evidence that the preferences to which they relate have the purpose or effect, on their face or as applied, of restraining employees in the exercise of their § 7 rights or impermissibly encouraging union membership by means of discrimination. Accordingly, we grant in part and deny in part the Board's petition for enforcement.

Since the late nineteenth century, Local 6 has been confronted with problems resulting from mechanization of the printing industry;1 as early as 1890, the Union issued a declaration recognizing the benefits of such "labor-saving" machinery as typesetting machines, but asserted the right to establish regulations for the employment of its members to run such machines.2 The Union's response to technological change historically has emphasized Union control of new machines and training of existing journeymen in the operation of the new machinery. Computerization of typesetting compounded the threat to journeymen skilled in the older techniques. Modern electronic phototypesetters, through the use of computers, can automatically justify, hyphenate, and perform other tasks formerly performed by the skilled typographer. Use of such automatic machinery is likely not only to decrease the number of jobs available but also to lower the degree of skill required to perform the remaining work.

Within this context, the 1975 Book and Job Contract ("the Contract") was a joint effort by the Union and employers to minimize the adverse effects of automation on journeymen in commercial printing ("book and job") shops,3 while accommodating the desires of employers to take full advantage of advances in technology. The employers in question were the approximately 150 members of the League, and approximately 50 non-League employers who had agreed in advance to be bound by the results of the negotiations between the Union and the League. In the 10-year contract,4 executed on December 22, 1975, and effective retroactively to October 4, 1975, the Union for the first time abandoned nearly all prior contractual "manning" requirements in exchange for income protection for the employees. The principal thrust of the agreement was to open the doors of book and job shops to automation through use of "any and all computers," to provide for the training of employees in the skills needed to operate such equipment, and to require the payment of guaranteed income to certain unemployed or underemployed employees from a fund established by the employers. In light of the income guarantees, exclusive hiring hall procedures were instituted, and supervised by the fund's trustees, to give highest priority in job referrals to employees who were eligible for guaranteed income payments.

The pertinent provisions are set forth in a section of the Contract entitled "Productivity and Job Security Special Agreement" ("Special Agreement"). Article 1 of the Special Agreement provided for the payment to "guaranteed employees" of "that amount necessary to produce . . . after deductions . . . an amount equal to the take home pay of an employee working at the trade."5 "Guaranteed employees" are defined as "regular situation holders and those diligently seeking work on October 4, 1975," who continue to seek and be available for full time employment in Book and Job shops covered by the Contract. The guaranteed income is to be paid out of the Benefit and Productivity Fund ("B.A.P. Fund"), a trust fund maintained by employer contributions.6

Article 2 required that all employment in shops covered by the Contract be handled through the hiring hall, which is run by the trustees of the B.A.P. Fund, and established the following priority for referrals of Book and Job branch journeymen and apprentices:7

There shall be five designations of applicants for work who shall have preference for work in the order of "A", "B", "C", "D" and "E".

"A" employees only are those guaranteed journeymen and apprentices working or seeking work in Book and Job shops under Contract with New York Typographical Union No. 6 as of October 4, 1975, as named in Exhibit A of the Contract.

"B" employees are those journeymen and apprentices working or seeking work in Newspaper shops under Contract with New York Typographical Union No. 6 as of October 5, 1975 as named in Exhibit B of the Contract.

"C" employees are those journeymen members of the International Typographical Union who make application for employment in the Book and Job Branch after date of ratification of this Contract.

"D" employees are those journeymen whose place of work becomes organized and for whom contributions are made to the Fund after October 6, 1975 who make application for other employment in the Book and Job Branch after date of ratification of this Contract.

"E" employees are all other employees who make application for employment after passing appropriate tests to determine their time at the trade and qualification as journeymen.

In addition, Article 2 established the priorities for employees seeking work as Graphic Arts Associates, i. e., clerical employees and skilled workers who had not obtained journeyman status:8

It is agreed that effective January 1, 1976, no new employees will be hired to perform work under the terms of a Graphic Arts Associates Contract until all unemployed members of the Graphic Arts Associates Branch are employed. Thereafter, new employees shall be hired exclusively through a hiring hall.

There shall be two designations of applicants for work who shall have preference for work in the order of "A" and "B".

"A" employees are those Graphic Arts Associates working or seeking work in Book and Job shops under Contract with the Graphic Arts Associates Branch of New York Typographical Union No. 6 as of October 4, 1975.

"B" employees are those persons who do not qualify as "A" employees and who seek work as Graphic Arts Associates in accord with established hiring hall procedures after October 5, 1975.

"B" employees shall be available for work after such work has been made available to "A" employees except that they may, subsequent to their employment be bumped from employment by "A" employees who become available for work.

The Special Agreement introduced various other devices aimed at maximizing utilization of the existing work force in shops under contract with the Union. For the first time, for example, Local 6 agreed to provisions for mandatory and incentive retirement.9 Other provisions were designed to encourage the retraining of existing employees on new machinery,10 insure Union jurisdiction over new job classifications11 and equipment,12 and protect the integrity of the Fund.

The present petition has its origin in charges filed with the Board by intervenors Linda Snider and Karin Lehrer, challenging the categories established by Article 2 of the Special Agreement for Book and Job branch journeymen and apprentices, and for Graphic Arts Associates. The following facts are drawn from testimony at the administrative hearing and from the opinion of the Administrative Law Judge ("ALJ").13

In July 1977, Snider and Lehrer was employed at Typographical Directions Corporation, a non-unionized commercial printing shop. For several years, they had participated in Local 6's efforts to organize that and other non-union shops. Both Snider and Lehrer claim that they had been issued union membership cards in March 1977, that their initiation fees had been waived, and that they had tried to pay their union dues on several occasions.14

On July 14, 1977, Snider accepted an offer from a League member, Royal Composing Room, Inc. ("Royal"), for employment as a computer keyboard operator. On July 20, 1977, however, Local 6 President Bertram Powers told Snider that he did not want her to work at Royal because of "trouble with training problems." He also stated that she and Lehrer were not yet Union members, and that if they became members they would be category C employees and would not be allowed to work in union shops so long as category A and B employees were unemployed. That same day, Powers told David Poleshuck, shop steward at Royal, who relayed the information to Royal vice president Leon Fershleiser, that Snider would not be able to go to work at Royal. On July 21, Powers sent a telegram to Snider which stated, "This is in confirmation of information provided to you yesterday that you are not yet eligible to seek work in composing room under contract with New York Typographical Union No. 6." Snider never obtained employment at Royal.

On July 18, 1977, Lehrer reported to Advertising Agencies Service Co., Inc. ("Advertising Agencies"), also a League member, for a job "try out." Apparently, the try-out was arranged pursuant to a suggestion by Powers.15 Lehrer reported to Advertising Agencies again on the night of July 19, and claims that on that night Marvin Shadrin, plant manager at Advertising Agencies, offered her a job.16 On July 21, however, Powers sent Lehrer a letter identical in content to the telegram sent to Snider, and Lehrer was never hired by Advertising Agencies.

It was undisputed that neither Snider nor Lehrer was a category A employee and that neither had any seniority standing at Royal or Advertising Agencies. Nor does there appear to be any question that there were substantial numbers of category A employees who were unemployed at the time.17

Snider and Lehrer filed charges with the Board on September 2, 1977, each claiming that the Union had "coerced and intimidated" her by preventing her from working in shops under contract with the Union. Their cases were consolidated, and the Board issued a complaint charging that the Union's hiring hall practices pursuant to the Contract were discriminatory and violated NLRA §§ 8(b)(1)(A) and (2), 29 U.S.C. §§ 158(b)(1)(A) and (2).

A hearing was held before the ALJ, who received testimony from the intervenors, Powers, Fershleiser, Poleshuck and Shadrin. The ALJ found that the Union had committed unfair labor practices by maintaining the hiring hall procedures required by the Special Agreement and by applying them to Snider and Lehrer.

In his opinion, the ALJ set out the following standard for determining whether the Union had committed unfair labor practices within the meaning of §§ 8(b)(1) (A)18 and 8(b)(2):19

A collective-bargaining agreement providing for an exclusive hiring hall does not violate the Act unless the referral system is administered in a discriminatory or otherwise arbitrary manner. Thus, Section 8(b)(2) and (1)(A) of the Act is violated if in the operation of an exclusive hiring hall employees are denied referral to jobs because they are not members of the union or for some other arbitrary or irrelevant reason.

(Footnotes omitted.) Applying this test to the hiring hall procedures established pursuant to the Special Agreement, the ALJ had little difficulty in reaching the conclusion that the categories established for referral of Graphic Arts Associates and that the preferences accorded journeymen and apprentices in categories B, C, and D were unlawful. He noted that the hiring hall procedures for Graphic Arts Associates were "almost identical in language" to procedures for the Printing Utilities Branch, found unlawful by the Board in New York Typographical Union No. 6 and Clark & Fritts Co., Inc., 236 N.L.R.B. 317 (1978). As to journeymen and apprentices in categories B, C, and D, the ALJ stated:

Employees in categories B, C and D, who are members of the Union, are given preference over employees in category E, who are not members of the Union. Such preferences constitute unlawful discrimination and therefore the Union by maintaining and sponsoring such hiring hall procedures violates Section 8(b)(1) (A) and (2).

The ALJ regarded the category A preference somewhat differently, since category A was composed only of those employees who were employed by League members or Independents as of October 4, 1975, or who had the status of laid off employees of League members or Independents on that date. The ALJ observed that "(i)f the intent of category A is to require that the employers shall recall their laid off employees before they hire new employees to fill vacancies, then a contractual provision which effectuates such intent would be lawful."

The threshold issue with respect to category A, according to the ALJ was whether the League and the Independents constituted a single bargaining unit, since "(r)ecall of laid off employees in a unit concept." Here, the ALJ found that the Independents had not merely adopted the agreement, but had manifested an "unequivocal intention" to be bound: the Independents had bound themselves in advance of negotiations, by long-standing agreements, to the result of League-Union negotiations; and several provisions in the Contract served as evidence of a "community of interests" between the League and the Independents, such as those relating to distribution of various benefits, operation of the hiring hall, automation-related training, and income guarantees. The ALJ concluded that the League and the Independents constituted a single multiemployer unit, and noted that in Ted Hicks and Associates, Inc., 232 N.L.R.B. 712 (1977), enforced, 572 F.2d 1024 (5th Cir. 1978), "in a factual setting similar to the instant proceeding the Board did not reject General Counsel's argument that 'Respondent delegated bargaining authority (to) . . . and became a member of the multiemployer unit.' "

Nevertheless, the ALJ concluded that the priority for category A employees was unlawful on its face. He offered two grounds for this conclusion: (1) category A, "as presently phrased," did not treat the guaranteed employees as laid off employees rather than new hires; and (2) "category 'A' is an integral part of the same hiring hall procedures which include other preferential categories that are unlawfully discriminatory." The ALJ concluded that:

(b)y maintaining in effect and enforcing the hiring hall procedures in its contracts with Printers League Section, Printing Industries of Metropolitan New York, Inc., and other employers which contracts became effective as of October 4, 1975 and which procedures give preference in referrals for employment to applicants who are members of Respondent as against other applicants for employment, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act.

In addition, the ALJ concluded that the Union's application of the hiring hall procedures to deny employment to Snider and Lehrer constituted further violations of §§ 8(b)(1)(A) and (2). In reaching this conclusion, he did not suggest that Snider and Lehrer should have been placed in category A, or that they were denied employment in favor of Union members with less seniority in the trade, in the bargaining unit, or in the particular shop.

In its Decision and Order, the Board affirmed the findings and conclusions of the ALJ with one exception, and appeared to base its decision on that exception. Stating its view that the ALJ's reliance on Ted Hicks and Associates, supra, was misplaced, the Board "reverse(d) the Administrative Law Judge's holding . . . that the Independent employers and League members in issue constitute a single multiemployer bargaining unit." The Board pointed out that in Clark & Fritts, Inc., supra, it had "interpret(ed) the very contract here in issue," in a way that "impliedly rejected the contention that, by agreeing in advance to be bound by future contracts negotiated by a union and a multiemployer association, an Independent employer becomes a member of a multiemployer unit."20

Inasmuch as League members and Independent employers are not part of a single multiemployer unit, the preference in question is not based upon the seniority of work experience acquired by an employee in a single bargaining unit. Rather, it is based upon an employee's employment in a shop under contract with the Union. Therefore, it is directly related to membership in the Union. Such a provision discriminates in favor of union members over nonmembers and, consequently, restrains and coerces employees in the exercise of their Section 7 rights. Accordingly, we hold that, in maintaining this portion of the hiring hall agreement and in enforcing it to deny employment to Charging Parties Snider and Lehrer, Respondent violated Section 8(b)(1)(A) and (2) of the Act.

The Board adopted the ALJ's recommended order, which directs the Union to cease and desist from maintaining and enforcing the hiring hall procedures required by the Special Agreement, to cease and desist from causing or attempting to cause Royal, Advertising Agencies, or any other employer to deny employment to Snider or Lehrer, and to make whole Snider and Lehrer for the loss of earnings suffered by them.

The Union did not object before the Board to the ALJ's findings that preferences accorded to employees in categories B, C, and D, over employees in category E, are unlawful. Nor did it object to the findings of unlawful preferences with respect to Graphic Arts Associates. These findings and that portion of the Board's order which enjoins these preferences are, therefore, not in issue here. NLRA § 10(e).

The principal issue here is whether the preference accorded to category A employees over all other employees violates the Act. We conclude that it does not, and we deny enforcement of the Board's order insofar as it relates to category A.

While the Board's finding that the category A preferences violate the Act appears to be based on its conclusion that the League employers and the Independents did not constitute a single bargaining unit, and while we disagree with this conclusion, our principal reason for denying enforcement with respect to category A is that the record lacks substantial support for the proposition that these preferences encouraged union membership by means of discrimination, or restrained employees in the exercise of their § 7 rights.21

As a general matter, § 7 of the Act guarantees to employees both the freedom to join a union and the freedom not to join a union.22 Recognizing the importance of these freedoms, various other sections of the Act place restrictions on employers and on labor organizations "to insulate employees' jobs from their organizational rights." Radio Officers' Union v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L.Ed. 455 (1954). See also NLRB v. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162, 1163 (2d Cir. 1976). Thus, § 8(a)(1) makes it an unfair labor practice for an employer to interfere with an employee's § 7 rights and, with certain provisos not pertinent here, § 8(a)(3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." Similarly, § 8(b)(1)(A) makes it an unfair labor practice for a union to restrain or coerce an employee in the exercise of his § 7 rights, and § 8(b)(2) makes it an unfair labor practice for a union "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3)."

These sections, however, do not prohibit all acts that would have the effect of encouraging union membership; nor do they prohibit all acts that would have the effect of discriminating against non-union members: "only such (encouragement) as is accomplished by discrimination is prohibited(, and) . . . only such discrimination as encourages or discourages membership in a labor organization is proscribed." Radio Officers' Union v. NLRB, supra, 347 U.S. at 42-43, 74 S.Ct. at 337; B. G. Costich & Sons, Inc. v. NLRB, 613 F.2d 450, 454 (2d Cir. 1980). Thus, if conduct of a union does not both discriminate against non-union employees and encourage union membership, it does not violate the above provisions. For example, as the ALJ recognized, an exclusive union hiring hall may encourage union membership, but it is not unlawful if there is no evidence of "discrimination either by the employers or unions that encourages or discourages union membership." Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers v. NLRB, 365 U.S. 667, 674, 81 S.Ct. 835, 839, 6 L.Ed.2d 11 (1961) (footnote omitted).

Further, "it is not sufficient merely to demonstrate discriminatory conduct and resulting encouragement or discouragement. Rather, 'the added element of unlawful intent is also required.' " B. G. Costich & Sons v. NLRB, supra, 613 F.2d at 454. But while unlawful motive is a necessary element of a violation of these sections, "no inquiry into motivation is necessary unless that conduct is first found to have encouraged or discouraged union membership, Radio Officers' Union v. N.L.R.B., supra, 347 U.S. at 45, 74 S.Ct. at 338, or at the very least, until it is shown that the conduct 'could have adversely affected employee rights to some extent . . . .' N. L. R. B. v. Great Dane Trailers, Inc., (388 U.S. 26, 34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967)) (emphasis in original)." Id. at 455.

In addressing the threshold question of whether the challenged provision discriminates against non-Union employees and thereby encourages employees to join the Union, we must look for real evidence from which to draw realistic inferences, for mere speculation will not support a finding of violation. See, e. g., B. G. Costich & Sons v. NLRB, supra; Truck Drivers Local Union No. 807 v. NLRB, 506 F.2d 1382 (2d Cir. 1974). Costich dealt with an employer who made contributions to a retirement fund on behalf of its casual employees who were union members, but did not make similar contributions on behalf of casuals who were non-union. Clearly this action discriminated between union and non-union employees; but because the benefit to union employees consisted of only 30 days of employer contributions and could not be realized by new union members for at least 15 years, we could not realistically accept the Board's contention that it "inherently" encouraged union membership. Truck Drivers Local Union No. 807 v. NLRB, supra, involved a pension plan which permitted the trustees to grant a year of pension credit for each year of union membership prior to 1937 in lieu of requiring the employee to prove his covered employment for that period. The Board argued that this was a per se violation of §§ 8(b)(1)(a) and 8(b)(2), because it was " 'reasonable to infer that current employees could conclude from the preference accorded pre-1937 union members in obtaining pension benefits now that it would be advantageous to become and remain union members in good standing with the expectation that their membership status may be similarly rewarded in the future.' (Emphasis in the original.)" Id. at 1385. Enforcement of the Board's order was denied because it was wholly unrealistic to suppose that current employees would be encouraged to join the union by the expectation that in the years to come there would be either an amendment to grant the pre-1937 benefits to them, or a new contract with a comparable provision for their benefit. We found such a possibility "utterly remote and speculative," and refused to "predicate a finding that a party is in violation of the law upon such a gossamer-like theory." Id.

In the present case, the Board's conclusion of unlawfulness fails to meet the threshold test for two reasons. First, there is insufficient evidence to support a finding that the preference for category A employees in fact discriminates against non-Union employees. Notwithstanding the ALJ's description of category A as "embracing only union employees" (Decision at 7), the Contract does not, on its face, require that "A" employees be Union members.23 And in fact at least one of the 3700 employees in that category is not a member of the Union.24 Nor is category A priority granted to all Union members, or even to all employees working in Union shops. Thus, the Special Agreement, applying a uniform standard to all, allows some Union members and some non-members to be treated equally as "A" employees; and, applying the same standard, it excludes some Union members and some non-members from category A.

More importantly, even if category A were, on its face or as a practical matter, limited to Union members, there is no rational basis for inferring that the preference given to "A" employees has the effect of encouraging Union membership, because priority is accorded only to those employees who were working or seeking work in a shop under contract with the Union as of October 4, 1975.25 Thus the class benefited here is closed to new members. Indeed it was a closed class prior to the date the Contract was finalized. One cannot gain this benefit by joining the Union. And it is unlikely that a similar benefit will be accorded new Union members in future contracts, since the provision was part of an effort by the Union to minimize the potential adverse impact of automation, to which the doors were opened wide in 1975. It can be expected that throughout the term of this 10-year contract, as experienced "hot-type" typographers retire or become trained on new "cold-type" machines, the need for such special protections will diminish. We are no more inclined to accept as reasonable a suggestion that employees will be encouraged to join Local 6 in the expectation that in some future contract or amendment they may be included in category A or its analogue, than we were to accept a similar suggestion in Truck Drivers Local Union No. 807 v. NLRB, supra.

Moreover, we are forced to conclude that the record does not support the Board's argument that the category A preferences were established for an improper motive. It cannot seriously be disputed that the category A preferences serve the crucial and direct purpose of protecting the integrity of the B.A.P. Fund. The 3700 employees in category A were guaranteed income in amounts equal to the take-home pay of an employed worker. For each guaranteed employee who is unemployed, therefore, the B.A.P. Fund must pay out a substantial sum of money. Whenever a non-guaranteed employee is hired, the B.A.P. Fund simply loses an opportunity to decrease its guarantee payments. Accordingly, the ALJ observed that the category A preferences are "designed to encourage the employment of the guaranteed employees" so that "the Fund (may) remain solvent and not be an onerous burden on the industry." And it must be recognized that the broader purpose of the category A preferences was to aid in the implementation of the laudable goal of opening the doors of book and job shops to automation, while minimizing the potentially devastating effects of the new technology on skilled journeymen. The preference for guaranteed employees is but one integral component in the carefully drawn plan to achieve these ends-a plan that not only guarantees income, and therefore gives job referral priority to the category A guaranteed employees, but also provides for the training of those employees and requires them to undergo such training as a condition of their eligibility to receive the guaranteed payments.

In the absence of any evidence that the Union's conduct actually encourages union membership or that it stems from unlawful motives, we can hardly enforce an order that upsets a carefully devised solution to problems previously recognized by this Court as "some of the most difficult for employees, unions, employers, and courts alike." Ryan v. New York Newspaper Printing Pressmen's Union No. 2, 590 F.2d 451, 452 (2d Cir. 1979).

Although it is not essential to our decision, we are constrained to note further our view that the Board's finding that the League and the Independents did not constitute a single bargaining unit is not supported by substantial evidence. Whether or not different employers belong to the same bargaining unit depends principally upon the consent of the employers. See, e. g., NLRB v. Sheridan Creations, Inc., 357 F.2d 245, 248 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544, rehearing denied, 386 U.S. 969, 87 S.Ct. 1018, 18 L.Ed.2d 126 (1967). The test used by the Board and approved by the courts is whether or not the employer has indicated an "unequivocal intention" to be a part of the bargaining unit. See, e. g., McAx Sign Company, Inc. v. NLRB, 576 F.2d 62 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); NLRB v. Beckham, Inc., 564 F.2d 190, 192 (5th Cir. 1977); NLRB v. Dover Tavern Owners' Ass'n, 412 F.2d 725, 727 (3d Cir. 1969). The court in NLRB v. Beckham, Inc., supra, stated as follows:

The test is whether the employer members of the group have indicated from the outset an unequivocal intention to be bound by group action in collective bargaining, and whether the union, being informed of the delegation of bargaining authority to the group, has assented and entered into negotiations with the group representative.

564 F.2d at 192. The Board, in Ruan Transport Corp. and District Lodge No. 77, International Association of Machinists and Aerospace Workers, 234 N.L.R.B. 241 (1978), summarized the test as follows:

The Board has consistently held that "the essential element warranting the establishment of multiple-employer units is clear evidence that the employers unequivocally intend to be bound in collective bargaining by group rather than by individual action. The correlative 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 multiemployer bargaining group (i. e., it does not intend to be bound by group bargaining) where it merely adopts a collective-bargaining agreement in the negotiation of which it did not actually participate and which it did not authorize another to negotiate on its behalf.

Id. at 242 (footnotes omitted), quoting Pacific Metals Company, Ltd., 91 N.L.R.B. 696, 699 (1950).

There is no indication in the present record that the Independents merely adopted a contract they had not authorized others to negotiate. To the contrary, the evidence of record points overwhelmingly to an intention on the part of the Independents to be bound with League members. Powers testified that the Independents had "signed in advance of this negotiation an agreement that they will abide by this agreement when it will be reached." Thus, the ALJ found that the Independents "bound themselves in advance of negotiations by agreements of a continuing nature to be parties to the contracts entered into by the League and the Union." (Decision at 9.)26 It is evident also that both the League and the Union consented to the Independents' joining the employer group, for the very agreement that the League and the Union negotiated provided for participation by non-League employers. For example, employees of the Independents were treated as guaranteed employees, entitled under the Contract to training on the new equipment and to benefits from the B.A.P. Fund. Employees of League members and Independents alike were listed in Exhibit A to the contract, which specified precisely who the category A employees were. Further, Article 14 of the Special Agreement required the establishment of an account titled "Typographical Union No. 6-Printers League Joint Administrative Account" to receive contributions from "an employer, signatory to this Contract, (which) is not a member of the League." (Emphasis added.) Individual signing of the contract does not appear to have been contemplated; Powers testified that "the minute" the Contract was signed, it was signed for both "League shops and non-League shops."27

Rather than citing evidence, the Board points only to its view that the ALJ misconstrued the Board decisions in Ted Hicks and Clark & Fritts. Whatever the Board may have decided with regard to the intentions of other respondents in other cases,28 we conclude that the Board's finding here is not supported by substantial evidence in the record as a whole.

Application of the Hiring Hall Procedures to Intervenors

Finally we turn to that portion of the Board's order which requires the Union to make whole Snider and Lehrer for the lost earnings resulting from application of the hiring hall procedures to them. Given our conclusion that the category A preference is not unlawful on its face, and despite the fact that the category B, C, and D preferences must be accepted here as unlawful, we conclude that the record does not support this portion of the Board's order.

It is undisputed that neither Snider nor Lehrer was a category A employee, and there is no claim that they should have been included in that group. It is not clear whether they were in category C (Union journeymen) or category E (non-Union employees), but in either event there is no evidence that Snider and Lehrer were denied employment because of their non-membership in the Union;29 they were told that even as "C" employees they would not be able to work in Union shops because there were "A" people unemployed. Nor does the record suggest that employees in categories B through D were given job referrals in preference to Snider and Lehrer. On the contrary, the record suggests that since 1975 there have always been hundreds of unemployed "A" employees, and there is, therefore, no basis for inferring that any employees in categories B, C, and D were given referrals at all.

Accordingly, since there is no evidence that the lawful preference for category A employees was applied to the intervenors unlawfully, nor any evidence that the unlawful preferences for category B, C, and D employees were applied to them at all, we must conclude that the record fails to provide substantial evidence to support the Board's finding that the Union committed unfair labor practices in causing the denial of employment to the intervenors.

The Board's petition for enforcement is denied insofar as it enjoins use of the category A preferences and orders the Union to "make whole" Snider and Lehrer, and in all other respects is granted.