Communications Workers Local 22 (Pittsburgh Press)

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 866 (N.L.R.B. 1991)

868
304 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 11, 1991, Adminstrative Law Judge Leonard M. Wagman
issued the attached decision. The Respondent filed exceptions and a supporting
brief, and the General Counsel and Company each filed answering briefs.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the decision and record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings, findings, and conclu-
sions only to the extent consistent with this Decision and Order.
2 The Memorandum further provides that the Company may bring suspected
abuses of the call-in system to the Union’s attention. If the Union fails to cor-
rect the abuse, the Company may assume the responsibility for calling the
part-timers.
3 We agree with the Union that the judge misapplied Detroit Mailers Local
40, supra. In that case, the judge found a violation based on the union’s con-
cession that it had charged a referral fee to individuals who had gotten work
from the employer through other means and that by so doing it had violated
Sec. 8(b)(1)(A). See id. at 962.
Pittsburgh Mailers Union Local No. 22, affiliated
with the Printing, Publishing and Media Work-
ers Sector, Communications Workers of Amer-
ica, AFL–CIO–CLC and Pittsburgh Press
Company. Case 6–CB–8006
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
The complaint alleged and the judge found1 that the
Union violated Section 8(b)(1)(A) by charging a refer-
ral fee to part-time mailroom employees of the Com-
pany who had obtained their employment without any
action by the Union. The Union excepts, arguing that
under the parties’ contractual arrangement it operates
an exclusive referral system and that therefore the fee
is lawful. We find merit in the Union’s exceptions and
we reverse.
The facts are not in dispute. The Company publishes
a newspaper and is a party to a collective-bargaining
agreement with the Union covering a unit of mailroom
employees. In 1988, the parties executed a memoran-
dum of understanding (the Memorandum) providing
that, under certain circumstances, the Company may
use a new classification of mailroom employee, the
part-time/temporary employee (part-timers). Under the
Memorandum’s terms, these employees are excluded
from coverage under the parties’ contract. The Com-
pany has employed part-timers under the terms of the
Memorandum at its North Side mailroom since August
1, 1989.
Among other conditions, the Memorandum sets out
a procedure for securing the services of part-timers.
Under it, the Company takes applications from pro-
spective part-timers, recruited either from sources of its
own or from a list provided by the Union, screens,
interviews, and tests the applicants, and, if satisfied,
places their names on a part-timer list. The Memoran-
dum requires that the list ‘‘will be comprised of 50
percent [Union] nominated and 50 percent [Company]
nominated individuals.’’
Under the Memorandum, the Company formulates
and updates the part-timer list. Each week, the mail-
room superintendent gives an updated list to an elected
union representative who is also a company employee
or, when no elected representative is available, to a
mailroom employee. The Union’s designee then tele-
phones ‘‘such number of part-timers on a rotation basis
from the list as may be required by the [Company].’’2
Beginning with the first name on the list, the caller
telephones each person listed, in order, until the re-
quired number of part-timers have agreed to work. The
next caller begins where the last caller left off. When
the last person has been called, the caller returns to the
top of the list and goes through it again. The caller
notes on the list the shifts for which part-timers are
needed, the time of each call, and the response. Since
August 1, 1989, the Union has required part-timers to
pay a fee of $2 for each call that results in a shift
worked.
The judge found that the requiring of payment of the
fee violates Section (b)(1)(A). He noted that the Act
prohibits a union from charging and collecting a refer-
ral fee as a condition of employment from newly hired
employees who do not gain employment through ef-
forts extended by the Union. Citing Detroit Mailers
Local 40 (Detroit Newspaper), 192 NLRB 951, 962
(1971), the judge reasoned that the Union in this case
does not assist in hiring part-timers and thus does not
provide a referral service; instead, he found that the
Union acts as a mere conduit in scheduling them for
work. Hence, under the judge’s reading of Detroit
Mailers, the Union is not entitled to charge the part-
timers a fee. In its exceptions, the Union argues that
the judge has misread Detroit Mailers and that the fee
is lawful because the Union controls the part-timers’
access to part-time temporary employment in the Em-
ployer’s mailroom. As noted above, we find that,
under the parties’ agreement and practice, the Union is
providing a referral service to employees and that its
charging a fee for successful referrals does not in itself
violate the Act.3
It is well settled that a union’s operation of a hiring
hall or referral system does not violate the Act. Team-
sters Local 357 v. NLRB, 365 U.S. 667, 674 (1961).
Moreover, a union is free to charge individuals re-
ferred for employment a fee reasonably related to the
value of the service provided. NLRB v. Operating En-
gineers Local 138, 385 F.2d 874, 876 (2d Cir. 1967).
Under a hiring hall agreement, the employer and the
union agree to ‘‘route’’ a classification of employees
through the union. Teamsters Local 357, supra at 676.
Historically, such arrangements grew out of the classic
‘‘hiring hall,’’ an actual location serving ‘‘as a cross-
roads where the pool of employees converges in search
of employment and the various employers’ needs meet
869COMMUNICATIONS WORKERS LOCAL 22 (PITTSBURGH PRESS)
4 Mountain Pacific Chapter, AGC, 119 NLRB 883, 896 fn. 8 (1957), enf.
denied in part 306 F.2d 34 (9th Cir. 1962), overruled, Teamsters Local 357,
supra.
5 See, e.g., Toledo World Terminals, 289 NLRB 670, 671–673 (1988) (union
operates hiring hall when steward, on employer’s premises, reads out names
of workers until employer’s needs are filled); Plumbers Local 17, 224 NLRB
1262 (1976), enfd. 575 F.2d 585 (6th Cir. 1978) (hiring hall found where
union kept a ‘‘loafing’’ list, which it read to employers over the telephone).
6 See, e.g., Morrison-Knudsen Co., supra, 291 NLRB 250, 258 (1988); Op-
erating Engineers Local 513 (McFry Excavating), 197 NLRB 1046, 1047
(1972) (exclusive hiring hall exists where top two categories for referral con-
sist of employees who have previously worked for the employer and, addition-
ally, employers are permitted to request up to 50 percent of other referrals by
name). Detroit Mailers Local 40, supra at 959 (casuals list in exclusive referral
system consisted in large part of employees whose names were submitted by
employer).
7 In this respect, this case is distinguishable from Teamsters Local 667
(Spector Freight), 248 NLRB 260, 261 (1980), in which the union bargained
with a multiemployer group for a referral system but, as the Board found, the
parties had not maintained one. In that case, the union essentially washed its
hands of the referral process by turning its miscellaneous list over to employ-
ers and permitting them to make all contacts with employees.
8 The Company argues in support of the judge’s reasoning that the Union
cannot lawfully charge a fee because, when it calls an individual on the list,
the Company has already ‘‘hired’’ that individual; thus, no ‘‘referral’’ and no
‘‘hiring’’ occur. Under the facts here, this argument is a distinction without
a difference, because the end result of the Company’s hiring process, as ap-
plied to part-timers, is not regular employment but placement on what is es-
sentially a referral list. In practical terms, the issue here is whether the Union
has performed an act that matches a job or shift opening with an individual
willing to perform the work. The answer, in our view, is yes. The decisive
factor in this case is not whether the Company has retained or relinquished
the right to nominate or screen potential part-timers, or even at what point in
the process it exercises these rights, but rather that under the parties’ system,
a person available for work and an employer with work to be performed are
brought together through the services of the Union. Of course, we do not pass
on the magnitude of the Union’s efforts or the relationship between its services
and the fee charged for them. These issues are not before us. We simply con-
clude that the Union is not precluded by the nature of its arrangement with
the Company from charging a reasonable fee for a call resulting in a shift
worked.
that confluence.’’4 The Board has, however, recog-
nized that other types of ‘‘routing’’ arrangements also
constitute exclusive referral systems5 and that, as a
practical matter, such systems can exist where, as here,
an employer takes part in the process of locating and
screening employees.6 In this case, the Company and
Union have agreed that the Company will ‘‘route’’ its
requirements for part-time/temporary employees
through the Union and that the Union will bear the re-
sponsibility of contacting individuals so that the Com-
pany’s needs are met. Unquestionably, the Union does
not perform all services connected with filling the part-
time temporary slots. It does not follow, however, that
the Union therefore performs no services.7 As it is
clear that under the parties’ agreement and practice
part-timers obtain work through efforts expended by
the Respondent and that they cannot obtain part-time
temporary mailroom work with the Company through
means other than this bargained-for arrangement, we
cannot find that the Union is collecting a referral fee
from employees who gained employment without any
efforts by the Union.8 Accordingly, we dismiss the
complaint.
ORDER
The complaint is dismissed.
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I would adopt the
judge’s decision finding that the Respondent has ex-
acted a referral fee from the Employer’s part-time em-
ployees to which it was not entitled, and has thereby
violated Section 8(b)(1)(A) of the Act.
Here, the Company contacts applicants for employ-
ment, screens them, interviews them, requires that they
complete the Company’s application, and thereafter
hires those who meet its requirements. Other than pro-
viding names and phone numbers of applicants for the
list of part-timers, the Respondent plays no part in the
hiring process. Even at that, if the Respondent were
charging individuals a referral fee for providing their
names and phone numbers to the Company as appli-
cants for employment there would be no quarrel here.
But that is not what is involved in this case. Rather,
after the part-time employees have been hired, the Em-
ployer formulates and updates its part- time employee
list, from which such number of part-timers are called
each week on a rotation basis as the Company decides
is necessary for staffing. Each week, the Company’s
mailing room superintendent gives an updated call-in
list to an employee in the mailing room, who usually
(though not always) is one of the Respondent’s elected
representatives. That individual uses the list, on in-
structions from the superintendent, to schedule part-
timers for work by making calls in rotation, noting the
time of the call and the response, calling each person
until the required number of part-timers has agreed to
fill the designated shift. On the next occasion, the call-
er starts with the next name on the list.
In short, a company employee, who may or may not
be a representative of the Respondent, takes the Com-
pany’s prepared list and, on company time using com-
pany facilities, makes calls to those on the list in the
order mandated by the Company.
I agree with the judge that, to the extent the Union
fulfills any role at all in this scenario, it is merely act-
ing as a conduit in the process of scheduling part-tim-
ers (whom the Respondent does not represent) for
work in the Company’s mailroom. The Respondent
does not provide a referral service to the part-timers in
this context (as opposed to providing names at the pre-
liminary stage of the Company’s hiring process).
In my view, this is not a legitimate hiring hall. I
would affirm the judge’s decision, and I dissent from
my colleagues’ failure to do so.
Julie Stern, Esq., for the General Counsel.
Richard Rosenblatt, Esq., of Englewood, Colorado, and
Marianne Olner, Esq. (Gilardi & Cooper), of Pittsburgh,
Pennsylvania, for the Respondent.
John H.M. Fenix, Esq. (Baker & Hostetler), of Cleveland,
Ohio, for the Charging Party.
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The caption of this case was amended at the hearing to reflect the Re-
spondent’s name correctly.
2 The General Counsel’s unopposed motion to correct the transcript, dated
June 20, 1990, is granted. The errors have been noted and corrected.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Pittsburgh, Pennsylvania, on May 17, 1990.
The charge was filed on September 21, 1989, and the com-
plaint was issued on December 14, 1989. The complaint al-
leged that since on or about August 1, 1989, the Respondent,
Pittsburgh Mailers Union, Local No. 22, affiliated with the
Printing, Publishing and Media Workers Sector, Communica-
tions Workers of America, AFL–CIO–CLC,1 had been charg-
ing a referral fee to part-time mailroom employees of the
Pittsburgh Press Company (the Company), who had obtained
their employment without any action by the Respondent. In
its timely answer, the Respondent denied that it had commit-
ted the alleged unfair labor practice.
Upon careful consideration of the entire record, including
the testimony of the witnesses and the exhibits received in
evidence, and after reading and considering the posttrial
briefs received from the General Counsel,2 Respondent, and
the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material to this case, the Company, a Pennsyl-
vania corporation, with an office and place of business in
Pittsburgh, Pennsylvania, has published, circulated, and dis-
tributed a daily newspaper, the Pittsburgh Press, in the Pitts-
burgh, Pennsylvania area. During the 12 months ending on
August 31, 1989, the Company, in the course and conduct
of these business operations, realized gross revenues exceed-
ing $200,000, held membership in, or subscribed to, various
interstate news services, including the Associated Press; pub-
lished various nationally syndicated features, including Dear
Abby; and advertised various nationally sold products includ-
ing automobiles produced by General Motors. Upon the fore-
going data, I find, and the Respondent admitted, that the
Company is, and has been at all times material to this case,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admitted, and I find, that at all times ma-
terial to this case, it has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
At all times material to this case, the Respondent and the
Company have been parties to a collective-bargaining agree-
ment covering a unit of the latter’s mailroom employees. The
Company employs bargaining unit mailroom employees at its
North Side facility and at its downtown operation. The Com-
pany’s mailroom employees at the downtown facility partici-
pate in the movement of newspapers from the presses to the
trucks for distribution. The unit mailroom employees at the
North Side facility insert advertising supplements into the
comic packages for distribution on Sunday, and also insert
advertising into the Company’s daily newspapers.
On February 12, 1988, the Respondent and the Company
executed a memorandum of understanding (the Memoran-
dum), which included provision for a new classification of
mailroom employee. The Memorandum expressly excluded
the new classification, part-time/temporary, referred to in the
Memorandum as ‘‘part-timers,’’ from coverage by the collec-
tive-bargaining agreement between the Respondent and the
Company. The Company has employed part-timers at its
North Side mailroom operations since August 1, 1989.
The Memorandum prescribes the same procedure for hir-
ing the part-timers as the Company uses for hiring its other
employees. The Company recruits prospective part-timers on
its own or from a list which the Respondent provided. The
Company screens and interviews the prospective employees.
At the time of the interview, the Company requires that they
fill out an application for employment and other forms. Suc-
cessful applicants undergo a physical examination, which the
Company provides. Upon satisfactory completion of the
physical examination, the Company hires the applicant. The
Memorandum requires that the list of part-timers ‘‘will be
comprised of 50 percent [Respondent] nominated and 50 per-
cent [Company] nominated individuals.’’
The Memorandum also assigns the responsibility for call-
ing the part-timers to work in the North Side mailroom oper-
ations. The Company formulates and updates the part-time
list and provides it to the Respondent. The Memorandum di-
rects the Respondent to maintain the list of part-timers and
to ‘‘call in to work such number of part-timers on a rotation
basis from the list as may be required by the [Company].’’
The memorandum provides that if the Company determines
that the Respondent has abused the call in system, the Com-
pany may so inform the Respondent. The Respondent shall
have 2 weeks to correct the abuse. If the Union does not cor-
rect the abuse within that period, the Company has the right
to displace the Union and assume responsibility for calling
in the part-timers.
Once per week, the Company’s mailing room superintend-
ent gives an updated call-in list to one of the Respondent’s
elected representatives, such as the chairman, or the assistant
chairman of the mailing room, who is also a company em-
ployee. A mailroom employee may also receive the call-in
list on occasion, when an elected representative of the Re-
spondent is not available. The recipient of the call-in list uses
it, on instructions from the mailing room superintendent, to
schedule part-timers for work.
When issued to the caller, the call-in list shows the part-
timers’ names, phone numbers, and social security numbers.
The caller, on instructions from the Company, will note on
the list the shifts for which the part-timers are needed. The
caller will also write in the time of each call, and check the
appropriate space on the call-in list, showing the response to
each call. The caller starts at the top of the call-in list, and
calls each person listed until the required number of part-tim-
ers have agreed to come to work on the designated shift. On
the next occasion, the caller will fill the Company’s request
for part-timers, starting where he had stopped in filling the
last request for part-timers. Upon reaching the end of the list,
the caller will return to the top of the list and go through
it again, until all shifts are filled. The Union performs this
task daily, except Sunday. The Company provides a new
871COMMUNICATIONS WORKERS LOCAL 22 (PITTSBURGH PRESS)
call-in list each week. The Union returns completed call-in
lists to the Company.
Since August 1, 1989, the Respondent has charged a fee
of $2 to a part-timer, each time he or she has received a call
and has worked on a mailroom shift. Payment of this fee is
not voluntary.
B. Analysis and Conclusions
The Board has recognized that the Act does not permit a
union to charge and collect ‘‘a daily referral fee as a condi-
tion of employment from newly hired mailroom employees
who did not gain employment through the referral system of,
or through any efforts extended by [the union].’’ Typo-
graphical Union Local 40 (Detroit Newspaper), 192 NLRB
951, 962 (1971). In that case, the Board found that the Union
was violating the Act by exacting daily referral fees from in-
dividuals who had been hired directly by an employer, with-
out any intervention by the Union. In that case, the Union
was calling the individuals to work as casual employees and
exacting the fee as a condition of employment.
The facts in the instant case do not differ materially from
those in Detroit Newspaper. Here, the part-timers have
gained employment at the Company without any effort by
the Respondent. Other than providing names and phone num-
bers of applicants for the Company’s list of part-timers, the
Union plays no part in the hiring process. The Company con-
tacts the applicants, screens them, interviews them, requires
that they complete a standard application form, and hires
those who meet its requirements. The call-in list results ex-
clusively from the Company’s efforts. The Respondent does
not assist in this process. It does not provide a referral serv-
ice to the part-timers. Instead, it acts as a conduit in the
process of scheduling part-timers for work in the Company’s
mailroom. I find therefore, that the Respondent is not entitled
to exact any referral fee from the part-timers.
Guided by the Board’s policy as expressed in Detroit
Newspaper, I find that since August 1, 1989, the Respondent
has exacted a referral fee from part-time employees, to which
it was not entitled, as a condition of obtaining shift assign-
ments in the Company’s mailroom. By this conduct, the Re-
spondent has coerced employees in the exercise of their right
under Section 7 of the Act to refrain from assisting a labor
organization. Accordingly, I further find that by this coercive
conduct, the Respondent has violated Section 8(b)(1)(A) of
the Act. Teamsters Local 667 (Spector Freight System), 248
NLRB 260, 262 (1980), enfd. 654 F.2d 254 (6th Cir. 1981).
CONCLUSIONS OF LAW
1. By collecting a referral fee as a condition of employ-
ment from part-time mailroom employees of the Company,
who did not gain employment through Respondent’s efforts,
the Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent violated the Act by charg-
ing and collecting referral fees from part-time mailroom em-
ployees of the Company, who did not gain employment
through Respondent’s efforts, I will recommend that Re-
spondent refund to those employees all the fees collected
from each of them plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]