Local 357, International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America v. National Labor Relations Board National Labor Relations Board v. Local 357, International Brotherhood of Teamsters, Chauffeurs Warehousemen Andhelpers of America

• Citation: 81 S.Ct. 835,365 U.S. 667,6 L.Ed.2d 11
• Decision Date: 17 April 1961
• Docket Number: Nos. 64,85,s. 64
• Parties: LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN ANDHELPERS OF AMERICA
• Court: United States Supreme Court

365 U.S. 667

81 S.Ct. 835

6 L.Ed.2d 11

LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner,

v NATIONAL LABOR RELATIONS BOARD.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v. LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN ANDHELPERS OF AMERICA.

Nos. 64, 85.

Argued Feb. 28, 1961.

Decided April 17, 1961.

Mr. Herbert S. Thatcher, Washington, D.C., for petitioner in No. 64 and for respondent in No. 85.

Mr. Norton J. Come, Washington, D.C., for respondent in No. 64 and for petitioner in No. 85.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Petitioner union (along with the International Brotherhood of Teamsters and a number of other affiliated local unions) executed a three-year collective bargaining agreement with California Trucking Associations, which represented a group of motor truck operators in California. The provisions of the contract relating to hiring of casual or temporary employees were as follows:

'Casual employees shall, wherever the Union maintains a dispatching service, be employed only on a seniority basis in the Industry whenever such senior employees are available. An available list with seniority status will be kept by the Unions, and employees requested will be dispatched upon call to any employer who is a party to this Agreement. Seniority rating of such employees shall begin with a minimum of three months service in the Industry, irrespective of whether such employee is or is not a member of the Union.

Discharge of any employee by any employer shall be grounds for removal of any employee from seniority status. No casual employee shall be employed by any employer who is a party to this Agreement in violation of seniority status if such employees are available and if the dispatching service for such employees is available. The employer shall first call the Union or the dispatching hall designated by the Union for such help. In the event the employer is notified that such help is not available, or in the event the employees called for do not appear for work at the time designated by the employer, the employer may hire from any other available source.' (Emphasis added.)

Accordingly the union maintained a hiring hall for casual employees. One Slater was a member of the union and had customarily used the hiring hall. But in August 1955 he obtained casual employment with an employer who was party to the hiring-hall agreement without being dispatched by the union. He worked until sometime in November of that year, when he was discharged by the employer on complaint of the union that he had not been referred through the hiring-hall arrangement.

Slater made charges against the union and the employer. Though, as plain from the terms of the contract, there was an express provision that employees would not be discriminated against because they were or were not union members, the Board found that the hiring-hall provision was unlawful per se and that the discharge of Slater on the union's request constituted a violation by the employer of § 8(a)(1) and § 8(a)(3) and a violation by the union of § 8(b)(2) and § 8(b)(1)(A) of the National Labor Relations Act, as amended by the Taft-Hartley Act 61 Stat. 140—141, as amended, 29 U.S.C. § 158, 29 U.S.C.A. § 158.¹ The Board ordered, inter alia, that the company and the union cease giving any effect to the hiring-hall agreement; that they jointly and severally reimburse Slater for any loss sustained by him as a result of his discharge; and that they jointly and severally reimburse all casual employees for fees and dues paid by them to the union beginning six months prior to the date of the filing of the charge. 121 N.L.R.B. 1629.

The union petitioned the Court of Appeals for review of the Board's action, and the Board made a cross-application for enforcement. That court set aside the portion of the order requiring a general reimbursement of dues and fees. By a divided vote it upheld the Board in ruling that the hiring-hall agreement was illegal per se. 107 U.S.App.D.C. 188, 275 F.2d 646. Those rulings are here on certiorari, 363 U.S. 837, 80 S.Ct. 1610, 4 L.Ed.2d 1723, one on the petition of the union, the other on petition of the Board.

Our decision in Local 60, United Broth. of Carpenters, etc., v. National Labor Relations Board, 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1, is dispositive of the petition of the Board that asks us to direct enforcement of the order of reimbursement. The judgment of the Court of Appeals on that phase of the matter is affirmed.

The other aspect of the case goes back to the Board's ruling in Mountain Pacific Chapter, 119 N.L.R.B. 883. That decision, rendered in 1958, departed from earlier rulings² and held, Abe Murdock dissenting, that the hiring-hall agreement, despite the inclusion of a nondiscrimination clause, was illegal per se:

The Board went on to say that a hiring-hall arrangement to be lawful must contain protective provisions. Its views were stated as follows:

'We believe, however, that the inherent and unlawful encouragement of union membership that stems from unfettered union control over the hiring process would be negated, and we would find an agreement to be nondiscriminatory on its face, only if the agreement explicitly provided that:

'(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements.

'(2) The employer retains the right to reject any job applicant referred by the union.

'(3) The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including the safeguards that we deem essential to the legality of an exclusive hiring agreement.' Id., 897.

The Board recognizes that the hiring hall came into being 'to eliminate wasteful, time-consuming, and repetitive scouting for jobs by individual workmen and haphazard uneconomical searches by employers.' Id., 896, n. 8. The hiring hall at times has been a useful adjunct to the closed shop.³ But Congress may have thought that it need not serve that cause, that in fact it has served well both labor and management—particularly in the maritime field and in the building and construction industry.⁴ In the latter the contractor who frequently is a stranger to the area where the work is done requires a 'central source' for his employment needs;⁵ and a man looking for a job finds in the hiring hall 'at least a minimum guarantee of continued employment.'⁶

Congress has not outlawed the hiring hall, though it has outlawed the closed shop except within the limits prescribed in the provisos to § 8(a(3).⁷ Senator Taft made clear his views that hiring halls are useful, that they are not illegal per se, that unions should be able to operate them so long as they are not used to create a closed shop:

'In order to make clear the real intention of Congress, it should be clearly stated that the hiring hall is not necessarily illegal. The employer should be able to make a contract with the union as an employment agency. The union frequently is the best employment agency. The employer should be able to give notice of vacancies, and in the normal course of events to accept men sent to him by the hiring hall. He should not be able to find himself, however, to reject nonunion men if they apply to him; nor should he be able to contract to accept men on a rotary-hiring basis. * * *

'* * * The National Labor Relations Board and the courts did not find hiring halls as such illegal, but merely certain practices under them. The Board and the court found that the manner in which the hiring halls operated created in effect a closed shop in violation of the law. Neither the law nor these decisions forbid hiring halls, even hiring halls operated by the unions as long as they are not so operated as to create a closed shop with all of the abuses possible under such an arrangement, including discrimination against employees, prospective employees, members of union minority groups, and operation of a closed union.' S.Rep. No. 1827, 81st Cong., 2d Sess., pp. 13, 14.

There being no express ban of hiring halls in any provisions of the Act, those who add one, whether it be the Board or the courts, engage in a legislative act. The Act deals with discrimination either by the employers or unions that encourages or discourages union membership.⁸ As respects § 8(a)(3) we said in Radio Officers, etc., v. National Labor Relations Board, 347 U.S. 17, 42—43, 74 S.Ct. 323, 337, 98 L.Ed. 455:

by discrimination is prohibited. Nor does this section outlaw discrimination in employment as such; only such discrimination as encourages or discourages membership in a labor organization is proscribed.'

It is the 'true purpose' or 'real motive' in hiring or firing that constitutes the test. Id., 347 U.S. 43, 74 S.Ct. 337. 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. Id., 347 U.S. 45, 74 S.Ct. 338. And see Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. The existence of discrimination may at times be inferred by the Board, for 'it is permissible to draw on experience in factual inquiries.' Radio Officers', etc., v. National Labor Relations Board, supra, 347 U.S. 49, 74 S.Ct. 340.

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,...