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Construction Union Hiring Halls: Service Under a Collective Bargaining Agreement As a Prerequisite to High Priority Referral

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Construction Union Hiring Halls: Service Under a Collective Bargaining Agreement As a Prerequisite to High Priority Referral William & Mary Law Review Volume 19 (1977-1978) Issue 2 Article 3 December 1977 Construction Union Hiring Halls: Service Under a Collective Bargaining Agreement as a Prerequisite to High Priority Referral Leslie W. Bailey Jr. Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Labor and Employment Law Commons Repository Citation Leslie W. Bailey Jr., Construction Union Hiring Halls: Service Under a Collective Bargaining Agreement as a Prerequisite to High Priority Referral, 19 Wm. & Mary L. Rev. 203 (1977), https://scholarship.law.wm.edu/wmlr/vol19/iss2/3 Copyright c 1977 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr CONSTRUCTION UNION HIRING HALLS: SERVICE UNDER A COLLECTIVE BARGAINING AGREEMENT AS A PREREQUISITE TO HIGH PRIORITY REFERRAL LESLIE W. BAILEY, JR.* As an employment agency, the union hiring hall can be helpful to "hardhats" and their employers in the building and construction in- dustry. Employment tenure in this industry is intermittent, and hard- hats work on a job-by-job basis on projects that frequently are short- lived.' Because the separation in location and time of different projects undertaken by a particular contractor renders permanent employment relationships uneconomical, most workers must seek new employment at the completion of each job, and their employers must forecast labor needs and recruit for upcoming projects. Union hiring halls can supply construction contractors with manpower efficiently, while simultaneously providing for maximum continuity of employ- ment for hardhats within the construction industry's unique circum- 2 stances. A construction worker's decision to seek employment through a hiring hall referral system, however, is not always voluntary. Fre- quently, a person cannot apply for work at the job site or otherwise deal directly with the contractor because an exclusive hiring arrange- ment exists between the contractor and a union. Collective bargaining agreements may grant the union exclusive authority to refer workers on a priority basis 3 to all projects undertaken while the contract is * B.A., University of North Carolina; J.D., College of William and Mary. Former staff attorney, National Right to Work Legal Defense Foundation. The author wishes to thank Dan Heldman of the staff of the National Right to Work Legal Defense Foundation for his assistance in preparing this Article. 1. S. REP. No. 187, 86th Cong., 1st Sess. 27 (1959), reprinted in I NLRB, LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT REPORTING AND DIsCLosURE ACT, 1959, at 423-24 (1959) [hereinafter cited as LEGISLATIVE HISTORY]. 2. For commentary on hiring halls see Craig, Hiring Hall Arrangements and Practices,9 LAB. L.J. 939 (1958); Fenton, Union Hiring Halls Under the Taft- Hartley Act, 9 LAB. L.J. 505 (1958); Kavarsky, Union Security, Hiring Halls, Right-to-Work Laws and the Supreme Court, 15 LAB. L.J. 659 (1964); Rains, Construction Trades Hiring Halls, 10 LAB. L.J. 363 (1959); Rothman, The Development and Current Status of the Law Pertaining to Hiring Hall Arrange- ments, 40 VA. L. REV. 871 (1962); Note, Unilateral Union Control of Hiring Halls: The Wrong and the Remedy, 70 YALE L.J. 661 (1961). 3. The priority referral provisions involved in Bechtel Power Corp., 223 N.L.R.B. 925, [1975-76] NLRB Dec. f 16,750 (1976), modified, 229 N.L.R.B. No. WILLIAM AND MARY LAW REVIEW [Vol. 19:203 84, [1977-78] NLRB Dec. 18,159 (1977), typify those usually contained in an exclusive hiring agreement. Article V of the Bechtel Power agreement states: Section 5.00 In the interest of maintaining an efficient system of production in the industry, providing for an orderly procedure of referral of applicants for employment, preserving the legitimate interest of the employees in their employment status within the area and of eliminating discrimi- nation in employment because of membership or non-membership in the Union, the parties hereto agree to the following system of referral of applicants for employment: Section 5.01 The Union shall be the sole and exclusive source of referrals of applicants for employment. Section 5.02 The Employer shall have the right to reject any applicant for em- ployment. Section 5.03 The Union shall select and refer applicants for employment without discrimination against such applicants by reason of membership or non-membership in the Union and such selection and referral shall not be affected in any way by rules, regulations, by-laws, constitutional provisions or any other aspect or obligation of Union membership policies or requirements. All such selections and referral shall be in accordance with the following procedure: Section 5.04 The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employment shall be registered in the highest priority group for which he qualifies. Section 5.05 Certain qualifications, knowledge, experience are required of anyone being referred as a journeyman electrician. Section 5.06 Group I All applicants for employment who have four (4) or more years ex- perience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman's examination given by a duly constituted Local Union of the IBEW, and who have been employed for a period of at least one (1) year in the last four (4) years under a collective bargaining agreement between the parties of this Addendum. Section 5.07 Group II All applicants for employment who have four (4) or more years ex- perience in the trade, and who have passed a journeyman's examination given by a duly constituted Local Union of the IBEW. Section 5.08 Group III All applicants for employment who have two (2) or more years ex- perience in the trade, are residents of the geographical [area] consti- tuting the normal construction labor market and who have been em- ployed for at least six (6) months in the last three (3) years in the trade under a collective bargaining agreement between the parties to this Addendum. 19771 HIRING HALLS in force,4 usually from one to three years. 5 Section 8 (f) of the Na- tional Labor Relations Act (NLRA)c authorizes such referral agree- ments, which customarily are made before the hiring of any workers.7 Section 8 (f) permits employers signatory to contracts establishing hiring halls to recognize the union as the bargaining representative Section 5.09 Group IV All applicants for employment who have worked at the trade for more than one (1) year. Section 5.10 If the registration list is exhausted and the Union is unable to refer applicants for employment to the Employer within 48 hours from the time of receiving the Employer's request, Saturdays and holidays ex- cepted, the Employer shall be free to secure applicants without using the referral procedure, but such applicants, if hired, shall have the status of temporary employees. The Employer shall notify the Business Manager promptly of the names and Social Security numbers of such temporary employees, and shall replace such temporary employees as soon as registered applicants for employment are available under the referral procedure. (emphasis supplied). 4. The Supreme Court recently has held that a contractor does not commit an unfair labor practice under § 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158 (a) (5) (1970), by refusing to honor a prehire agreement negotiated with a union that had not yet obtained majority support. NLRB v. Local 103, Int'l Ass'n of Bridge, Structural and Ornamental Iron Workers, 98 S. Ct. 651, 658 (1978). Therefore, the union may extract an exclusive hiring agreement from an employer, but the agreement is unenforceable until the union attains a majority status. Id. at 659-61. 5. LEGISLATIVE HISTORY, supra note 1, at 424. 6. 29 U.S.C. § 158(f) (1971). Section 8(f) states in pertinent part: It shall not be an unfair labor practice.., for an employer engaged primarily in the building and construction industry to make an agree- ment covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are mem- bers . because (1) the majority status of such labor organization has not been established.., prior to the making of such agreement... or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such employer labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the par- ticular geographical area. .. 7. LEGIsLATIvE HISTORY, supra note 1, at 424-25. But see Wilhoit & Gibson, Can a State Right-to-Work Law Prohibit the Union-Operated Hiring Hall, 26 LAB. L.J. 301 (1975), which argues that § 8(f) does not specifically permit ex- clusive hiring halls. Id. at 306. WILLIAM AND MARY LAW REVIEW [Vol. 19:203 of employees not yet hired. Consequently, many potential employees participate neither in the selection of a bargaining representative s nor in the establishment of the referral system. In the legislative his- tory accompanying section 8(f) Congress observed: "The practice of signing such agreements for future employment
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