I recently revised something I wrote up for an IATSE meeting years ago:
A Hiring Hall Primer
The Ten Commandments of Good Referral
Robert S. Giolito P.C., 11755 Wilshire Blvd Ste 2140, Los Angeles CA 90025, (310) 473 3535
The hiring hall is one of the oldest and perhaps least appreciated organizing tools available to the labor movement. When operated honestly and efficiently, it is also one of the most powerful tools available to unions in achieving the bargaining strength necessary to win improvements in employees’ wages, hours, and working conditions. By controlling access to industry jobs, our members can ultimately control the industry itself and their own destiny.
What is a hiring hall?
A hiring hall is essentially a meeting place between employers seeking workers and employees seeking work. The hiring hall can be a physical location, such as a union hall, office, a dock, or other gathering place, or a “virtual” hall, consisting of a list of employees and jobs kept in the business agent’s head or in a computer. The hiring hall is best described by its function: to match employees and jobs.
Anyone can set up a hiring hall, but unions are natural hiring hall operators. In ancient days, skilled craftsmen formed guilds for mutual protection and interested employers would contact the guilds to secure workers, often on terms set by the guilds. This system provided advantages to both employers and employees and has persisted to modern times. Even Sen. Robert Taft, the father of the infamous anti-union Taft-Hartley Act, believed that employers should be free to seek referrals from unions since “the union frequently is the best employment agency.”
Today, union hiring halls have lots of competition from job contractors and temporary agencies which have sprung up to service employers’ growing needs for skilled and unskilled contingent workers. The largest American temp agency, Manpower, Inc. is one of the nation’s largest “employers.” Yet, Manpower is not much more than a sophisticated for-profit hiring hall, albeit one designed to serve employers’ needs only.
Types of union hiring halls
Union hiring halls are divided into two kinds: exclusive and non-exclusive.
In an exclusive arrangement, the employer grants the union operating the hiring hall the exclusive right to refer employees. The employer cannot hire from any other source. Exclusive hiring halls are almost always established by collective bargaining agreements. The language will state that the union is the “sole” or “exclusive” source, or that the union will have “first opportunity” to refer, etc. If the employer bypasses the hall and hires off the street, the union has a grievance for the lost work.
Exclusive hiring halls can also exist without a written agreement as a matter of historical practice of the parties. For example, a theatrical producer who traditionally seeks all of its stagehands from the union-operated hall will be found to have an exclusive arrangement with the union, despite the lack of a written agreement. In such cases, the employer usually pays the workers the union’s scale published on its “rate card.”
In a non-exclusive arrangement, the union’s hiring hall is only one of many possible sources of employees. The employer is not obligated to use the hiring hall, and in fact routinely hires employees off the street.
Labor law treats exclusive and non-exclusive hiring halls quite differently. In general, a union has far more legal responsibilities, and consequent potential liability, in operating an exclusive as opposed to a non-exclusive hiring hall. Of course, there are far more strategic and organizing advantages as well.
Legitimacy of exclusive hiring halls
For many years, the NLRB took a dim view of union-operated exclusive hiring halls. The Labor Board believed that such halls unlawfully encouraged union membership in violation of federal labor law, since employees naturally looked to the union, and not the employer, as the source of their work. In 1961, the Supreme Court set the Board straight. The Court said that while a hiring hall certainly encourages union membership, so do good union contracts and effective grievance representation. The law only prohibits “discrimination” in the union’s operation of the exclusive hiring hall, not the hall itself.
Nevertheless, the Labor Board persists in regulating exclusive hiring halls by imposing a “duty of fair representation.” This means that the union must refrain from arbitrary, discriminatory, or bad faith conduct in operating the hall. The Board has interpreted the duty as requiring unions to abide by hiring hall rules that the union may have published, and to avoid arbitrary or discriminatory referral decisions, such as by refusing to refer union dissidents or minority or female employees to available jobs.
Despite popular belief, right-to-work (for less) laws pose absolutely no legal obstacle to the establishment of an exclusive hiring hall. The union cannot deny employees access to the hall on the basis of union membership, but the union can charge non-members a reasonable fee representing the actual pro-rata costs of operating the hall. For example, the union could charge all employees using the hall, members and non-members alike, an equal and reasonable “referral fee.” Employees who also wish to join the union (and thus have a vote on contracts, union officers, and the operation of the hall) would pay union dues in addition to the referral fee.
In the majority of states which do not have right-to-work (for less) laws, unions typically include the costs of operating a hiring hall in their membership dues structure. Employees who choose not to join the union are entitled by law to a deduction of union dues spent on purely membership functions, e.g., union meetings, publications, etc. In most cases, the costs of operating a hiring hall are not deductible. But to avoid the accounting hassle, these unions can also charge a referral fee that is equally imposed on member and non-member alike, so long as the fee represents the actual costs of operating the hall.
Negotiating an exclusive hiring hall
Many employers seeking a reliable source of available, skilled labor will be willing to enter into some form of hiring hall arrangement, especially if the union offers added inducements, such as prequalifying or training the employees. The notable exception is in situations where an alternative labor source, e.g. a non-union labor contractor (usually a former union member) or temporary agency, has signed up workers in competition to the union. In these cases, the union will have to organize the non-union workers using traditional or non-traditional methods, as the case may fit.
Outside the building and construction industry, a union cannot legitimately negotiate a collective bargaining agreement with an employer unless it represents a majority of the employer’s employees. A so-called “prehire” contract negotiated before the employer has hired a substantial complement of employees is extremely vulnerable to attack. Nevertheless, many employers are desperate to nail down their labor sources and costs before they begin an expensive tour or project. Unions must tread carefully here. The union may want to offer a simple non-exclusive referral arrangement at first, and then make a majority showing once the employees have been hired. Unfortunately, until the law is changed, there is no perfect solution to this problem.
Hiring halls and “seniority”
Hiring halls are typified by a list or roster of available employees, who are in many cases listed in order of longevity on the list. This is perfectly legitimate, provided the hall ensures against abuse. A properly operated hall will offer senior employees job preference without having to deny work opportunities to newer workers seeking to enter the industry. Seniority is abused, however, where senior employees are allowed to jump calls or leave jobs before they are finished in order to start a new job somewhere else.
Unions can design referral rules regarding length-of-service which will both protect senior employees and enable the union to organize new employees. For example, a union which has exclusive referral arrangements with one or more industry employers can establish a referral list for each employer, and a general list open to all employees. If a particular employer’s list is exhausted, the union can refer qualified employees from the general list. Thus, newer employees get an opportunity to work for established employers without displacing the more senior employees, earning their own seniority in the process.
Other legitimate hiring hall classifications
Besides length-of-service with an employer or in the industry, a hiring hall can classify employees using other legitimate criteria. These include length of residency, proficiency in desired skills, safety, or protection of employees who are dedicated to the industry. For example, a hiring hall can legitimately give preference to employees who (1) have worked longest for a particular employer or in the industry, (2) who reside in a particular place, such as the union’s geographical jurisdiction, (3) who possess certain desired skills or experience, in the honest opinion of the union, and (4) who do not hold regular second jobs. So long as these factors are not linked directly or indirectly to union membership (such as by counting service with union-represented employers only), they can be lawfully used to identify and classify employees for purposes of referral.
While there is no legal requirement to keep referral records, accurate record keeping is the safest and surest way for a union to defend itself against charges of arbitrary or discriminatory conduct in the operation of a hiring hall. At an absolute minimum, a well-run hiring hall should keep records showing job calls received and the names and times employees were dispatched. If a union fails to keep such records, it will be extremely vulnerable to a charge alleging that an employee was improperly referred.
All referral records kept by the union must be open and available to inspection by employees, even to the extent of providing free copies of the most relevant records if requested. While this may seem onerous, an effective hiring hall should be transparent in the way it operates, fostering trust on the part of both employees and employers who use the service.
Hiring hall rules
Most, if not all, hiring halls maintain a set of rules describing the referral operation and procedure. Sometimes, these rules are contained in the contract or the union’s bylaws. In any event, once a union adopts hiring hall rules, they must be strictly followed. A union’s departure from its own rules will be considered evidence of a breach of its duty of fair representation.
The union has the right to make and determine its own hiring hall rules, so long as those rules do not discriminate as described above. The rules should be posted or otherwise publicized to employees. Notice of any changes in the rules must be given to all employees before the changes can take effect. If a rule change has not been properly published, it cannot be used to deny employees a job referral.
A well-run hiring hall is characterized by simple rules easily understood by everyone using the service. Rules enable the union to establish one or more referral lists, define how employees are entered onto and removed from the lists, and impose penalties for non-performance or other violations of the rules. The rules should also provide a procedure for appeal in the event an employee is found to be in violation.
The Ten Commandments of Good Referral
1. Thou shalt fill thy call.
If the hall cannot reliably fill its contractual job commitments to employers, the union will lose credibility and bargaining power, and the hall will cease having any utility to employers and employees alike.
2. Thou shalt keep accurate referral records.
Absolutely essential to explain and defend the operations of the hall.
3. Thou shalt enact and thereafter observe thy referral rules.
Rules are means of ensuring objective decision making by the unions, and protecting the rights of both members and the union.
4. Thou shalt publish thy referral rules and records.
The hiring hall should be transparent in its operation, which inspires trust on the part of the employees and respect by the employers. Employees have the right to review and copy all referral records.
5. Thou shalt charge a fair and reasonable referral fee.
A well-run hiring hall costs money to operate, to which all participants should be required to contribute equally.
6. Thou shalt not covet thy neighbor’s job.
Call jumping by senior employees disrupts jobs, discourages new employees, and interferes with organizing efforts.
7. Thou shalt enter into contracts with thy employers.
There should be written contracts with all employers using the hiring hall, long-term if possible, but even if only for the “run of the show.”
8. Thou shalt organize all thy participants into thy Union.
With the many seniority and other classification options available to unions in designing their hiring halls, there is no reason to deny full union membership to any hiring hall participant.
9. Thou shalt encourage, educate, and train thy members.
A well-trained, highly skilled, and reliable workforce is invaluable to employers today. A regular training program will attract new employees and allow existing employees to improve their skills. Most importantly, training helps the union to organize the industry since the union becomes the source of the most qualified and desirable employees.
10. Thou shalt honor and observe the wise advice of thou counsel.
I couldn’t resist; but, seriously, hiring halls should have access to experienced counsel to help answer the inevitable questions that rise.
Those that observeth these Commandments shall become enlightened and shall be known throughout the Land as fair and wise, and shall henceforth be ushered with Praise and Joy unto that great and everlasting Hiring Hall above, where they shall become enshrined and honored for all Eternity.