This petition of the National Labor Relations Board for enforcement of its order finding respondents in violation of § 8(a) (5) and (1) of the Act 1 presents a unique labor law question. Respondents are non-profit corporations with memberships consisting of employers engaged in the building and construction trade in Texas. The unfair labor practice charge which gave rise to the petition to enforce was filed by the Construction and General Laborers Union, Local No. 18, International Hod Carriers, Builders and Common Laborers Union, AFL-CIO, the statutory bargaining representative for the hod carriers and laborers employed by the contractors forming respondents’ membership. The unfair labor practices occurred in Houston, Texas where respondents have their principal offices and places of business. Each respondent is the collective bargaining agent for its respective employer members, and the activities оf the members admittedly affected interstate commerce in the degree required to give the Board jurisdiction.
Respondents and the Union began negotiating for a new contract several weeks prior to the expiration datе, October 31, 1961, of the then existing contract. The union proposed that the contract include a provision for a non-discriminatory union hiring hall. The terms, among others, of the tendered provision were that the hiring hall would be the sole source of employees for the various contractors represented by respondents, that the union would select and refer applicants on the basis of such factors as seniority in employment by the respective contrаctors, length of residence in the area, and general work experience in the trade, but without dis *451 crimination by reason of membership or non-membership in the union. The employer was to retain the right to reject any applicant for employment, and the right to discharge any employee for good cause who had been accepted, but whose services consequently proved unsatisfactory. The hiring hall proposal had reference, of сourse, only to employees in the categories represented by the union.
Respondents rejected the proposal on the advice of counsel that a non-discriminatory union hiring hall was illegal under the Texas right to work laws whiсh generally provide that no person shall be denied employment on account of membership or non-membership in a labor union. 2 Upon the expiration of the existing contract, the union called a strike in support of its cоntract demands including the demand for the hiring hall. A Texas state court enjoined the strike on the basis that a hiring hall agreement would contravene the public policy embodied in the Texas right to work laws. The parties subsequently entered into a contract substantially similar to the old contract, but without prejudice to the union pursuing its rights with respect to the hiring hall question. The union then filed a charge with the Board alleging that respondents had violated § 8(a) (5) and (1) of the Act by refusing to bargain rеgarding the hiring hall proposal. The trial examiner sustained the unfair labor practice complaint issued on this charge.
The board affirmed, holding, with two members dissenting, that the hiring hall question presented a mandatory subject of bargaining under § 8(d) of the Act, 29 U.S.C.A. § 158(d). The board, as had the examiner, rejected the contention of respondents that the hiring hall proposal would constitute an agreement requiring membership in a labor organization as a condition of employment within the meaning of § 14(b) of the Act, 29 U.S. C.A. § 164(b). This section leaves control of this question to the states where they choose to prohibit such a requirement.
We enforce. In our view the hiring hall clause in question was a mandatory subject of collective bаrgaining under the Act, and it does not fall under the § 14 (b) exception.
It is now settled law that a labor contract providing for a non-discriminatory hiring hall is legal, absent the actual practice of discrimination under the agreement. Local 357, Intеrnational Brotherhood of Teamsters, etc. v. N. L. R. B., 1961,
Respondents urge that this language does not cover the obtaining of employment but is instead limited to those conditions which arise аfter an actual employment relationship has been established. They point to the inclusion of the term “hire” in § 8(a) (3), 29 U.S. C.A. § 158(a) (3), which makes it an unfair labor practice to discriminate “ * * * jn regard to hire or tenure of employment or any term or condition of employment * * *”, and the fact that “hire” is not included in § 8(d) to support this contention. The argument is that the omission was intentional and thus the hiring process is not embraced in § 8(d). However, § 8(d) also fails to mention “tenure of employment” while this clause is present in § 8(a) (3),
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and it has been held that “tenure of employment” is a condition of employment and subject to mandatory bargaining. See Fiberboard Paper Products Corp. v. N. L. R. B., 1964,
Respondents also urge that § 8(d) is limited in scope to no more than what is allowed under the 1959 amendment to the Act set out in § 8(f), 29 U.S.C.A. § 158(f), which amendment would prohibit a strike to obtain the hiring hall clause. Section 8(f), in pertinent part, permits an employer in the building and construction industry to make a contract with a union before the union’s majority is established to provide that thе employer will notify the union of employment opportunities, or give such union an opportunity to refer qualified applicants-for such employment. The amendment makes such a contract legal when absent the amendment it wоuld not be, because of the union not having a majority, but the contract is not a mandatory subject of bargaining so that strike action in support of obtaining it is authorized. N. L. R. B. v. Int. Hod Carriers, 8 Cir., 1960,
The case of N. L. R. B. v. Wooster Division of Borg-Warner Corporation, 1958,
The record here discloses that employment in the construction trade is transitory in nature, with employees moving frоm job to job and employer to employer. The nature of the employment does not lend itself to employee security through seniority rights. The proposal of the union was to establish a system of seniority rights and job priority through the use of the non-discriminatory hiring hall. It seems clear that this aim bears directly on regulating relations between the employers and employees in the industry involved, and it would also settle a term or condition of employment. This is a multi-employer situatiоn where the essence of employee security would rest on job priority standards being established through a common source — the hiring hall. In these circumstances we hold that the demand for a non-discriminatory hiring hall clause by the union presented a mandatory subject of bargaining to respondents, and that they were obligated to bargain concerning it, unless the proposal was otherwise proscribed by the Labor Act.
With respect to proscription, it is urged that the hiring hаll clause is a form of compulsory unionism left for regulation by the states under § 14(b) of the Act, 29 U.S.C.A. § 164(b), and invalid when found to be in conflict with a state law. That section provides:
“Nothing in this subchapter shall be construed as authorizing the execution on application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”
In Local 24 of the International Bd. of Teamsters, etc. v. Oliver, 1959,
Resрondents assert that the hiring hall clause here is a form of union security contemplated by § 14(b) and left to the states for prohibition. It is true that the terms of § 14(b) as well as the legislative history suggest the intent on the part of Congress to save to the states the right to prohibit compulsory unionism. However, the long and the short of this matter is that § 14(b) contemplates only those forms of union security which are the practical equivalent of compulsory unionism. See N. L. R. B. v. General Motors Corp., 1963,
Accordingly, we find that the hiring hall clause in question is not envisaged in § 14(b) and it follows that Texas is without authority to proscribe it. The federal labor law is paramount, and respondents should have bargаined with the union on the clause.
Enforced.
Notes
. 29 U.S.C.A. § 158(a) (5) and (1) :
“(a) It shall be an unfair labor practice for an employer—
* * * # t-
“(5) to refuse to bargain collectively ■with the representatives of his employees, * *
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 оf this title;”
29 U.S.C.A. § 157:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for thе purpose of collective bargaining or other mutual aid or protection, * *
This court has jurisdiction of the proceeding under § 10(e) of the National Labor Relations Act, as amended. 29 U.S.C.A. § 160(e).
. Articles 5154a, 5154g, 5207a, 7428-1, 7428-2, Yernon’s Ann.Revised Civil Statutes of Texas.
. 29 U.S.C.A. § 158(d):
“For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, * *