Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 107Chairman Dotson, dissenting, believed that because the institutionof disciplinary proceedings and the imposition of a fme weredone without regard to a member's status and the type andamount of bargaining unit work performed, the union violatedthe Act. He noted that neither the union's constitution andbylaws nor the charges and notification of fme distinguished betweenemployer representative and rank-and-file employees. Accordingly,he deemed the case apposite to American BroadcastingCos. v. Writers Guild,'" in which the Supreme Court affirmedthe Board's fmding that the Guild violated Section 8(b)(1)(B) byformulating strike rules that prohibited all members from crossinga picket line regardless of the capacity in which they wereworking and enforcing those rules against supervisor-memberswhile professing "little or no interest in what kind of work wasdone during the strike."G. Union Causation of Employer DiscriminationSection 8(b)(2) prohibits labor organizations from causing, orattempting to cause, employers to discriminate against employeesin violation of Section 8(a)(3), or to discriminate against one towhom union membership has been denied or terminated for reasonsother than the failure to tender "the periodic dues and theinitiation fees uniformly required as a condition of acquiring orretaining membership." Section 8(a)(3) outlaws employer discriminationin employment that encourages or discourages unionmembership, except insofar as it permits the making of union-securityagreements under specific conditions. By virtue of Section8(f), union-security agreements covering employees "in the buildingand construction industry" are permitted under lesser restrictions.In Morrison-Knudsen Co. ,124 a panel majority found that theGeneral Counsel's showing that nonmembers paid approximatelytwice as much in fees as did members to use the respondent localunion's hiring hall supported an inference that the fees were discriminatoryin violation of Section 8(b)(2). Accordingly, thatpart of the case was remanded to give the union the opportunityto rebut the inference. The Board also dismissed the complaintallegation 'that the union and employers maintained an exclusivehiring hall that operated in an arbitrary, unfair, or discriminatorymanner in violation of Sections 8(b)(2) and 8(a)(3), respectively.Member Johansen dissented.Regarding the hiring hall issue, the administrative law judgefound that the parties had an unwritten exclusive hiring hall arrangementthat required the union to refer the most qualified individual,as determined by the judgment of a union representative,at the time of a job opening. The hiring hall arrangement123 437 U.S. 411 (1978).124 291 NLRB No. 40 (Chairman Stephens and Member Cracraft; Member Johansen dissenting).