comparing the original hiring hall with its modern day attributes
How later courts described this case
- comparing the original hiring hall with its modern day attributes
- “We do not think it enough to say that this latest decision is consistent with the general drift of NLRB precedent, as it is that very drift that troubles us.”
- “Congress, the Supreme Court, and the NLRB thus agreed on the basic principles of a legitimate hiring hall for which nonunion workers could be charged a fee by the union . . . .”
- “We are mindful of the deference we owe the Board’s expertise and judgment.”
Written by the judges who cited it.
The opinion
SENTELLE, Circuit Judge,
concurring:
I agree with the majority that the Board has erred and that we must remand. I differ from my colleagues in the breadth of the Board’s authority upon remand.
As the majority makes plain, the precedents of the Board and the courts establish that a union which charges non-union workers must have done something to earn the charge — performed some service or provided some assistance through which the employees “gained employment” — or be in violation of § 8 of the Act, 29 U.S.C. § 158 (b)(1)(A) (1988). See Highway and Local Motor Freight Employees, Local Union No. 667, 248 N.L.R.B. 260 (1980) (Spector Freight System, Inc.); Detroit Mailers Union No. 40, Int’l Typographical Union, 192 N.L.R.B. 951 (1971); see also NLRB v. Local 138, Int’l Union of Operating Eng’rs, 385 F.2d 874, 877 (2d Cir.1967), cert. denied, 391 U.S. 904 , 88 S.Ct. 1653 , 20 L.Ed.2d 418 (1968).
I find quite instructive an old case from the Second Circuit wherein that Circuit tied the union’s right to exact a fee from nonunion members hired under a hiring-hall arrangement to the expense of the local in *663 operating the hall. Local 138, Int’l Union of Operating Eng’rs v. NLRB, 321 F.2d 130 , 135 (2d Cir.1963). As that court expressed it, “While a union might under proper accounting procedures include in the cost of operating a hiring hall some reasonable percentage of the union’s general expenses, the union has not argued before us that its charges to nonmembers were based on anything except an intention to exact from them the amount paid by members.” Id. at 135.
In the present case the parties had ample chance to make an evidentiary record before the AU and to argue the same before the Board. It appears here that the union is charging the one-half of the call-in list not nominated by the union a fee for doing absolutely nothing. The union incurred no expense. The personnel making the calls were on company time. Those personnel may have' been union members, but that was incidental to what they were doing. Granted, the AU excluded some evidence, but as the court’s opinion makes clear, that evidence did not help the union, but rather hurt it. See Maj. Op. at 660 n.
4.
Thus, while I concur with the majority’s reasoning, and its result, so far as it goes, I would remand for a result that goes a bit further. Rather than remand for reconsideration and reasoned justification of the decision, I would remand with instructions that the Board affirm the finding of the AU that the union has committed an unfair labor practice, and enter a remedial order.