TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

154 Twenty-sixth Annual Report of the National Labor Relations Board
through the luring hall was thus likewise unlawful 8 In its prior
Mountain Pacific decision,° the Board had concluded that a hiring
arrangement which vested exclusive authority in a union to clear
or designate applicants for employment constituted "discrimination
in regard to hire or tenure of employment to encourage or discourage
membership in any labor organization," in violation of section
8(a) (3) and (1) and 8(b) (2) and (1) (A) of the act unless
it explicitly provided that (1) Selection of applicants for referral
to jobs shall be without regard to union membership requirements,
(2) the employer shall retain the right to reject any applicant
referred by the union, and (3) the parties shall post for the employees'
inspection all provisions relating to hiring, including the
foregoing provisions
The Supreme Court held that an exclusive hiring hall arrangement,
without safeguards, is not per se unlawful under the act For,
although the very existence of such a hall may encourage union
membership, it does not constitute discrimination within the meaning
of section 8(a) (3) Thus, the Court stated "It is the 'true purpose'
or 'real motive' in hiring or firing that constitutes the test Some
conduct may by its very nature contain the implications of the
required intent, the natural foreseeable consequences of certain action
may warrant the inference But surely discrimination cannot
be inferred from the face of the instrument when the instrument
specifically provides that there will be no discrimination against
'casual employees' because of the presence or absence of union membership
The only complaint in the case was by Slater, a union member,
who sought te circumvent the hiring hall agreement When
an employer and the union enforce the agreement against union
members, we cannot say without more that either indulges in the kind
of discrimination to which the Act is addressed " 1°
Justice Clark, in dissent, was of the view that an exclusive luring
hall is discriminatory, even apart from a showing that it is operated
so as to prefer union members For it denies employment to a job
applicant unless he first clears through the hall and obtains a referral
card Moreover, since encouragement of union membership is a foreseeable
consequence of requiring employees to resort to a union hiring
procedure, the Board could properly conclude that the mere exist-
• The Board's finding was affirmed by the District of Columbia Circuit, 276 F 2d 646
The court, however, rejected the dues reimbursement provisions of the Board's order,
discussed below Twenty-fifth Annual Report, pp 132-133
'Mountain Pacific Chapter, Associated Gene; a/ Contractors, 119 NLRB 883, 897
Twenty third Annu gl Report, pp 85-86
10 The Court, with Justice Whittaker dissenting, also rejected the Brown-Olds remedy
which the Board had imposed for the illegal hiring arrangement, for the reasons set forth
In the Local 60 case, discussed below