International Alliance of Theatrical Stage Employees, Moving picture Technicians, Artists and Allied

1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 NLRB No. 81 International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of The United States, its Territories and Canada, AFL–CIO, CLC, Local 838 and Cory B. Swartz and Freeman Decorating Company. Case 27–CB–093060 August 23, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN Upon a charge filed on November 13, 2012 (and amended on January 23, 2013), by Cory B. Swartz, the General Counsel issued a complaint and notice of hear- ing on March 28, 2013, against the Respondent Union, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL–CIO, CLC, Local 838. The complaint alleged that the Union violated Section 8(b)(1)(A) of the Act by maintaining an attendance rule that conditions hiring hall users’ eligibil- ity for job referral upon the payment of assessments to the Union for noncompliance with that rule. On January 24, 2014, the General Counsel, the Charg- ing Party, and the Respondent filed with the Board a joint stipulation of facts and a motion to transfer this pro- ceeding to the Board. The parties waived a hearing be- fore an administrative law judge and agreed to submit the case directly to the Board for findings of fact, conclu- sions of law, and a Decision and Order based on the stip- ulated record. On April 30, 2014, the Board approved the stipulation of facts and granted the motion. Thereaf- ter, the General Counsel and the Respondent filed briefs. On March 19, 2015, the General Counsel, the Charging Party, and the Respondent filed a joint motion to sup- plement the stipulated record. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record and briefs, the Board makes the following FINDINGS OF FACT I. JURISDICTION Freeman Decorating Company (the Employer) is a corporation headquartered in Dallas, Texas, with branch offices throughout the United States. The Employer is engaged in the business of producing special events, in- cluding trade shows in Salt Lake City, Utah. During the calendar year ending December 31, 2012, the Employer, in conducting these operations, performed services val- ued in excess of $50,000 in states outside the State of Utah. The parties stipulated, and we find, that Freeman Dec- orating Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Respondent Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICE A. Stipulated Facts Since at least May 2012, the Union and the Employer have maintained an agreement requiring that the Union be the exclusive source of referrals for employment with the Employer. The agreement states in relevant part: The Company grants the Union the exclusive right to refer applicants to be employed by the Company to per- form work covered by this Agreement and will com- municate all labor needs exclusively to the Union Business Representative and the show site Job Steward. Since at least May 13, 2012, the Union has maintained, as part of its job referral procedure, an attendance rule that includes the following provisions for failure to com- ply with the rule: Any referent who fails to report to work on time will automatically be suspended from the referral list until referent has paid a $25.00 assessment. . . . Any referent, who fails to report to work, or whose re- placement does not report to work on time, will be sus- pended from the referral procedure until the referent has paid a $100.00 assessment. Any referent who fails to report to work the second time will automatically be suspended from the Referral list until the Referent has paid a $150.00 assessment. Failure to report to work for the third time will cause the referent to be automatically suspended from the re- ferral list until the referent has paid a $200.00 assess- ment. A referent who fails to report to work for the fourth time will automatically be permanently removed from the referral list.1 1 The parties agreed in their joint motion to supplement the stipulat- ed record that the original stipulation included an incorrect version of the attendance rule. They further agree that the correct version, quoted above, has minor textual differences from the initial submission, but that “both contain language that conditions subsequent referrals on payment of outstanding assessments for failing to show up to work on time, or at all.” IATSE LOCAL 838 (FREEMAN DECORATING) 1063 Pursuant to the attendance rule, referents will be noti- fied by regular mail of each offense and may request an appeal before a referral committee (composed of five union members in good standing) within 10 days of the notice. The parties stipulated that: (a) Utah and Idaho, the only locations in which the Union operates its hiring hall, are right-to-work states; and (b) membership in the Union is not a condition of employment or a requirement to be eligible for referral for employment under the Un- ion’s job referral procedure. The parties further stipulat- ed that maintaining an attendance rule addresses a legit- imate concern of the Respondent in the effective perfor- mance of its representative function as the administrator of the hiring hall. The General Counsel challenges the lawfulness of the four provisions of the attendance rule that condition a referent’s inclusion on the referral list upon payment of outstanding fines for violations of attendance rules; he does not challenge the lawfulness of the fines them- selves. Nor does he challenge the provision under which a referent will be permanently removed from the referral list upon failing to report for work for the fourth time. Finally, the General Counsel does not contend that the assessment of the attendance rule fines is applied dispar- ately against members and nonmembers of the Union. B. The Parties’ Contentions The General Counsel’s complaint alleged that the Un- ion violated Section 8(b)(1)(A) by maintaining an at- tendance rule that “conditions eligibility for dispatch/job referral on the payment of fines.” In his brief to the Board, the General Counsel asserts that, as a per se mat- ter, a union may not refuse to refer an employee for em- ployment in order to enforce the collection of a fine or assessment. The General Counsel acknowledges that the Union had a legitimate interest in policing the attendance of referents, and that attendance rules such as the Re- spondent’s are designed to “insure that workers whom unions refer actually show up for work and show up on time, so as to preserve a union’s reputation and relation- ship with employers to which it supplies labor.” The General Counsel contends, however, that although the Union could lawfully fine referents for lateness or failure to appear, pursuant to Board precedent it could not law- fully condition referents’ work eligibility on the payment of that fine. See Fisher Theatre, 240 NLRB 678 (1979); ILWU, Local 13 (Pacific Maritime Assn.), 228 NLRB 1383 (1977), enfd. 581 F.2d 1321 (9th Cir. 1978), cert. denied 440 U.S. 935 (1979). The Union contends that Section 8(b)(1)(A) was not intended to prohibit conduct like its attendance rule, which regulates the proper operation of its hiring hall for legitimate purposes, and was necessary to (a) ensure that referents show up for their assignments at trade shows, which are large one-time events that must be assembled quickly; (b) prevent no-shows from adversely affecting referral opportunities for other referents; and (c) reim- burse the Union for the administrative cost of finding replacements for no-shows. The Union asserts that the General Counsel’s allegation of a per se violation lacks merit, and the cases cited by the General Counsel are distinguishable: both involved the enforcement of inter- nal union rules that applied only to members, unlike the rule here, which applies to members and nonmembers alike, and does not affect membership status. Finally, the Union asserts that, to the extent that any inference can be drawn that its attendance rule was unlawful, that infer- ence was rebutted by the showing that its action was nec- essary to the effective performance of its function of rep- resenting its constituency. C. Discussion Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization to “restrain or coerce employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of member- ship therein . . . .”2 In Mountain Pacific Chapter, 119 NLRB 883, 895 (1957), enf. denied 270 F.2d 425 (9th Cir. 1959), the Board found that an exclusive hiring hall arrangement was per se unlawful because it inherently encouraged union membership. Thereafter, in Teamsters Local 357 v. NLRB, 365 U.S. 667 (1961), the Supreme Court rejected the Board’s per se approach and upheld the legality of hiring hall referral systems. Although the Court acknowledged that “the very existence of a hiring hall encourages union membership,” it held that “the only encouragement or discouragement of union mem- bership banned by the Act is that which is ‘accomplished by discrimination.’” Id. at 674–676 (quoting Radio Of- ficers v. NLRB, 347 U.S. 17, 43 (1954)). The Court not- ed that in the Taft-Hartley amendments, Congress “aimed its sanctions only at specific discriminatory prac- tices,” and did not intend to limit unions’ attempts to enforce otherwise valid, contractually established hiring hall procedures. Id. at 676. When it operates an exclusive hiring hall, a union has a duty of fair representation to all applicants using the hall, 2 Owing to the proviso, Sec. 8(b)(1)(A) does not prohibit a union from requiring its members to adhere to internal union rules or from imposing intraunion discipline. See Office Employees Local 251 (San- dia National Laboratories), 331 NLRB 1417, 1420 (2000) (“Sec. 8(b)(1)(A) reaches only the external enforcement of union rules, im- pacting the employment relationship, and not their purely internal en- forcement.”). 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether members or nonmembers. See Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67 (1989). As part of this duty, the union must operate its exclusive hiring hall “in a fair and impartial manner. This code of acceptable conduct necessarily extends to the institution of any referral rules which . . . cannot be discriminatory or arbitrary.” Boilermakers Local 374 (Combustion En- gineering), 284 NLRB 1382, 1383 (1987), enfd. 852 F.2d 1353 (D.C. Cir. 1988). In Operating Engineers Local 18 (Ohio Contractors Assn.), 204 NLRB 681 (1973), enf. denied on other grounds 555 F.2d 552 (6th Cir. 1977), the Board ex- plained that, in the hiring hall context, when a union in- terferes with a referent’s employment status for reasons other than the failure to pay dues, initiation fees, or other fees uniformly required, a rebuttable presumption arises that the interference is intended to encourage union membership in violation of Section 8(b)(1)(A).3 A union may rebut the presumption by establishing that referrals are made pursuant to a valid union-security provision, or that its conduct did not violate its duty of fair representation and was necessary for the effective performance of its representational function. Teamsters Local 519 (Rust Engineering), 276 NLRB 898, 908 (1985), enfd. mem. 843 F.2d 1392 (6th Cir. 1988); Boil- ermakers Local 433 (Riley Stoker Corp.), 266 NLRB 596, 599 (1983). Here, because the Union’s attendance rule affects ref- erents’ employment status by providing for the suspen- sion of workers from referral until their late-show/no- show assessments are paid, we find that the General Counsel has established a rebuttable presumption that the rule would “encourage union membership” within the meaning of Operating Engineers Local 18 (Ohio Con- tractors Assn.), above. Accordingly, we must next eval- uate whether the Union has rebutted this presumption. Consistent with the foregoing principles, we first con- sider whether the rule is consistent with the Union’s duty of fair representation. In order to show that it is not, the General Counsel must show that the union acted “so far 3 As the Board explained in Operating Engineers: When a union prevents an employee from being hired or causes an employee’s discharge, it has demonstrated its influence over the em- ployee and its power to affect his livelihood in so dramatic a way that we will infer—or, if you please, adopt a presumption that—the effect of its action is to encourage union membership on the part of all em- ployees who have perceived that exercise of power. But the inference may be overcome, or the presumption rebutted, not only when the in- terference with employment was pursuant to a valid union-security clause, but also in instances where the facts show that the union action was necessary to the effective performance of its function of repre- senting its constituency. 204 NLRB at 681. outside a ‘wide range of reasonableness’ as to be irra- tional.”4 Here, we find the General Counsel failed to make such a showing. The parties stipulated that the Union’s policy “addresses a legitimate concern of Re- spondent in the effective performance of its representa- tive function as the administrator of the hiring hall.” Significantly, unlike in other cases where the Board has found that a union acted unlawfully in the operation of its hiring hall, there is no indication that the Union’s policy is arbitrary, discriminatory, or has been applied in bad faith.5 On the contrary, the Union’s policy is reasonably designed to ensure the effective operation of its hiring hall, applies to members and nonmembers alike,6 is plainly articulated and relies on objective criteria, and there is no evidence it has been discriminatorily applied. Having determined that the Union’s rule did not vio- late the Union’s duty of fair representation, we next con- sider whether the rule is necessary to the Union’s effec- tive performance of its function of representing its con- stituency. In United Brotherhood of Painters, Decora- tors & Paperhangers of America, Local Union No. 487 (American Coatings, Inc.), the Board explained the Un- ion’s rebuttal burden: It is plain that union actions reasonably designed to preserve the integrity of contractually prescribed refer- ral practices, even though those actions bring changes in job status to individual employees, are of a nature meeting the burden of rebuttal. . . What is reasonable, moreover, is not to be narrowly construed in matters of this sort. (citations omitted). 226 NLRB 299, 301 (1976). The Board accords a union deference when determining what conduct is reasonable to ensure the effective performance of its representative func- tion. Once a valid objective is shown, the Board will not substitute its judgment for the union’s in determining what response is reasonable. “The Board does not, and should not, substitute itself for the Union in weighing the wisdom of the stated objective.” Id., quoting Chicago Federation of Musicians, Local 10, American Federation of Musicians (Shield Radio & T.V. Productions, Inc.), 153 NLRB 68, 84 (1965) (emphasis in original).7 Additionally, so long as a 4 Air Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). 5 Cf. Stagehands Referral Service, 347 NLRB 1167, 1170–1171 (2006), enfd. 315 Fed.Appx. 318 (2d Cir. 2009) (finding that union failed to refer a hiring hall member for “arbitrary and invidious reasons unrelated to any objective standards for referral”), and the cases cited therein. 6 Cf. Fisher Theatre, 240 NLRB 678 (1979) (union rule requiring payment of fines before referral applied only to union members). 7 See also Local 644, United Brotherhood of Carpenters & Joiners of America (Tousley-Iber Co.), 271 NLRB 1125, 1147 (1984). (“[A] IATSE LOCAL 838 (FREEMAN DECORATING) 1065 union’s chosen means of preserving the integrity of its con- tractual referral system is lawful, the Board does not require a union to demonstrate that it was the best or only means available. See Millwrights’ Local 1102 (Planet Corp.), 144 NLRB 798, 801–802 (1963) (otherwise valid union effort to enforce its hiring hall procedures not unlawful “simply be- cause [the union] may have had other avenues of recourse open to it.”).8 Applying this analysis, we find that the Union’s at- tendance rule is reasonably designed to serve its stated objective of ensuring “the effective performance of its hiring hall referral function so as to preserve Respond- ent’s reputation and relationship with employers to which it supplies labor.”9 As the Union explained, the policy addresses its “interests in establishing an effective and prompt means of getting [a referent] to show up for work and preventing him from adversely affecting others missing the call he took.” The assessments enumerated in the policy, which range from $25 for lateness to $200 for a third failure to report, are reasonable both in scope and execution. Indeed, by imposing a series of incre- mental assessments before exercising the most severe (and lawful) remedy—exclusion from the hiring hall— the Union’s rule on its face is plainly designed to ensure fair and predictable progressive outcomes. And, as the Union explained in its brief, its progressive fines cannot be effectively enforced without suspensions “because offenders could continue with impunity to violate the no show rules, and take calls without consequence. By the time the trade show is over, the damage is done to the Union, the Employer, and the public.” Given that trade shows last for a short time only, it is surely rational for the Union to take preemptive measures to deter hiring hall users from committing attendance infractions, in order to facilitate the referral of available workers, to allow for the potential removal of offenders union may seek as well to act to preserve lawful advantages it has ob- tained by contract in filling employment opportunities . . . so long as it does not exceed that objective. It is not for [the Board] to pass on the wisdom of a union-stated objective, where it is discernibly . . . related to the lawful concerns of unit employees.”). 8 Citing Ohio Contractors, our dissenting colleague misstates the na- ture of the rebuttal burden by suggesting that a union must demonstrate that its chosen means of enforcing a hiring hall rule is the most effec- tive or most viable means of ensuring compliance with that rule. How- ever, American Coatings, decided subsequent to Ohio Contractors, explains that a union may rebut the presumption by showing that its chosen employment-related sanction is a reasonable means of ensuring the integrity of its contractual referral system. A union need not prove that the means it chooses to protect its referral system will be the best means available. See American Coatings, supra; Planet Corp., supra, at 802. 9 As noted above, the parties stipulated that the rule addresses a le- gitimate concern of the Union in the effective performance of the hiring hall. from the eligible pool upon nonpayment, and to cover administrative costs.10 In this way, the rule reasonably serves the shared goal of the Union and the hiring hall users in sustaining the ongoing viability of the hall.11 Accordingly, we conclude that the Union’s rule is neces- sary to the effective performance of its function of repre- senting its constituency. We recognize that in the cases cited by the General Counsel, ILWU Local 13 (Pacific Maritime Assn.) and Fisher Theatre, the Board found that the respective un- ions violated the Act by refusing to refer employees who failed to pay union-imposed fines. But we disagree with the General Counsel’s assertion that either of those cases established a per se rule whereby a union may never re- fuse to refer an employee for that reason. Indeed, in both cases, the Board carefully evaluated the unions’ particu- lar conduct rather than making a per se determination of unlawfulness. Moreover, and contrary to our dissenting colleague, we find that those cases are factually distin- guishable. Both involved fines that were imposed to enforce internal union rules against members unrelated to the unions’ hiring halls; Pacific Maritime concerned the nonpayment of “caucus and convention assessments and fines,”12 and Fisher Theatre concerned employees who had been fined for violating their union’s internal prohi- bition on bumping.13 Thus, it cannot be said that the unions’ actions in either case were “reasonably designed 10 The dissent contends that no evidence was adduced that the in- cremental fine amounts were directly tied to the administrative costs of referents’ noncompliance with attendance rules. As a preliminary matter, we note that the General Counsel did not challenge the amounts of the fines or contend that they were unlawful. In any event, we find that requiring the Union to make such a showing does not comport with our precedent, which emphasizes that the Board will not second-guess the wisdom of the Union’s chosen approach to preserving the integrity of its referral system. See American Coatings, supra, at 301. 11 The dissent argues that the Union has not adduced sufficient evi- dence regarding its justification for the rule and the circumstances that led the Union to enforce its attendance-related fines through non- referral. Again, this does not comport with our precedent. Where, as here, the Union has identified the legitimate interest in ensuring prompt, reliable referrals to employers, our role is not to substitute our judgment for the Union’s in how it addresses this interest. The Union’s rule that provides for a nondiscriminatory series of progressive assess- ments and ultimately the employment-related sanction of nonreferral is a reasonable means for ensuring the integrity of the referral system. See Boilermakers Local 40 (Envirotech Corp.), 266 NLRB 432, 433– 434 (1983) (declining to scrutinize a union’s rationale for imposing an employment-related sanction on a referent who violated a facially law- ful, “published, well-known union rule” that served “legitimate, non- discriminatory” purposes relating to the effective operation of the hir- ing hall). Contrary to the dissent, the temporary suspension from refer- ral is not a punishment for failure to pay the fines; it is part of a pro- gressive system aimed at deterring absences that negatively impact the hiring hall. 12 228 NLRB at 1385. 13 240 NLRB at 685–690. 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to preserve the integrity of contractually prescribed refer- ral practices.” American Coatings, 226 NLRB at 301. Here, on the other hand, the assessments imposed by the Union, and enforced via nonreferral, went to the effective administration of the hiring hall itself rather than the po- licing of unrelated internal union discipline. Additional- ly, unlike in Pacific Maritime and Fisher Theatre, the assessments imposed by the Union in this case were ap- plicable to both members and nonmembers who used the hiring hall. Accordingly, we shall dismiss the complaint. ORDER The complaint is dismissed. MEMBER MCFERRAN, dissenting. The union rule challenged here bars hiring-hall users who were late for assigned jobs, or who failed to report, from being referred to future jobs unless they pay a fine to the union. The issue presented is not whether the Un- ion has a legitimate interest in policing job attendance, whether the challenged rule is related to that interest, or whether fines for attendance infractions are permissible. The issue, rather, is whether the Union may lawfully enforce attendance-related fines by preventing employees who do not pay the Union from being referred by the hiring hall. It is well-established that operation of a hiring hall in a discriminatory manner to encourage union membership violates the Act. Teamsters Local 357 (Los Angeles- Seattle Motor Express) v. NLRB, 365 U.S. 667, 675 (1961). However, the Board has also acknowledged that—regardless of the presence or absence of explicit discrimination—a hiring hall rule that denies access to employment is presumptively unlawful. Operating Engi- neers Local 18 (Ohio Contractors Assn.), 204 NLRB 681 (1973), enf. denied on other grounds 555 F.2d 552 (6th Cir. 1977). This presumption is based in the nature of the influence that a hiring hall operator wields in control- ling whether employees can pursue their livelihoods. As the Board explained in Ohio Contractors, “[w]hen a un- ion prevents an employee from being hired or causes his discharge, it has demonstrated its influence over the em- ployee and its power to affect his livelihood in so dra- matic a way that we will infer—or, if you please, adopt a presumption that—the effect of its action is to encourage union membership on the part of all employees who have perceived that exercise of power.” Id. at 681. A union that administers a hiring hall can rebut this presumption by showing that its action was “necessary to the effective performance of [the union’s] function of representing its constituency.” Id. Thus, the refusal to refer for employment can be justified, but not by a mere showing that the sanction is convenient to those operat- ing the hiring hall or has been implemented in a nondis- criminatory manner. The union bears the heavier burden of showing that the use of this sanction is “essential to its effective representation of employees.” Id. On the stipulated record here, it seems clear to me that the Union has failed to carry its burden to show that de- nial of employment was “necessary to the effective per- formance of [the union’s] function of representing its constituency”—i.e., the effective operation of the hiring hall. It may be (contrary to the General Counsel’s argu- ment) that there are circumstances where a union could not effectively address hiring-hall attendance infractions without imposing fines enforceable by denying refer- rals—but in this case, at least, the Union has not made such a showing. The essential facts here are straightforward. The Un- ion’s attendance rule imposes a series of progressive as- sessments on hiring hall referents who are late or fail to report to assigned jobs: $25 for lateness, $100 for the first absence, $150 for the second absence, and $200 for the third absence. A referent is automatically suspended from the hiring hall until those assessments are paid to the Union. On the fourth absence, the referent will be permanently removed from the hiring hall, a provision of the rule that the General Counsel does not challenge. No evidence has been adduced regarding the Union’s justifi- cation for the rule or the circumstances that may have led to its adoption. Similarly, no evidence in the record demonstrates that the existence or size of the fine is re- lated to any administrative costs incurred by the hiring hall in replacing an absent or tardy employee.1 The goal of the rule, as stipulated, is “the effective per- formance of [the Union’s] hiring hall referral function so as to preserve [the Union’s] reputation and relationship with employers.” But viewing that goal as legitimate does not mean that the Union met its rebuttal burden to show that its fine-enforcement mechanism—the aspect of the rule challenged by the General Counsel—was neces- sary and thus lawful. On this score, the majority errs in treating the Union’s bare assertions as if they were evi- dence.2 The majority relies on the Union’s contention, asserted in its brief, that its fines cannot be enforced without suspensions “because offenders could continue 1 Thus, we are not presented with the question whether such a fine directly tied to administrative costs incurred by the union in addressing absence or tardiness would be considered part of the expenses associat- ed with running a hiring hall that can properly be charged to hiring hall users. 2 See Plasterers’ Local 232 (John J. Ruhlin Construction), 268 NLRB 795, 798 (1984) (rejecting union’s “bald assertion” in support of necessity defense); Operating Engineers Local 478 (Stone & Webster), 271 NLRB 1382, 1385 (1984) (same). IATSE LOCAL 838 (FREEMAN DECORATING) 1067 without impunity to violate the no show rules, and take calls without consequence.” But no record evidence ac- tually supports this contention. There is no evidence, for example, that shows that the Union adopted the rule in response to attendance abuses, much less that the Un- ion’s rule was a response to the failure of pro-attendance measures that did not involve extracting fines through suspensions from the hiring hall. In my view, there is simply nothing in the stipulated record to explain why the suspension of referents to en- force the Union’s attendance-related fines is necessary— that is, essential—to the effective operation of the hiring hall.3 My colleagues reason—without evidentiary sup- port—that the Union’s rule is necessary “to deter hiring hall users from committing attendance infractions, in order to facilitate the referral of available workers, to allow for the potential removal of offenders from the eligible pool upon non-payment, and to cover administra- tive costs.” But this rationale confuses the general goal of the Union’s rule with the specific means used to achieve that goal. The crucial fact here is that the denial of employment is being used solely to punish users’ fail- ure to pay fines to the Union, rather than to address the 3 Although the majority nominally applies the correct legal standard, its substantive discussion centers not on the necessity of the rule, but on whether the rule was “reasonably designed to serve its stated objective” and “rational.” This approach neglects the heightened burden that applies in cases where a union has prevented an employee from being hired. See Operating Engineers Local 18, supra, 204 NLRB at 681; Stagehands Referral Service, LLC, 347 NLRB 1167 (2006), enfd. 315 FedAppx. 318 (2d. Cir. 2009). Indeed, the majority’s approach is es- sentially indistinguishable from the Board’s analysis in general duty-of- fair representation cases, where it asks only whether “the union’s be- havior is so far outside a ‘wide range of reasonableness’ as to be irra- tional.” Air Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991), quot- ing Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). This surely cannot be the same test that applies where, as here, a presumption of unlawful conduct by the Union has already been established. underlying attendance issues. Under the rule, notably, a hiring hall user is free to miss assigned jobs three times—provided he is willing to pay the Union for the privilege and notwithstanding the likely harm to the ef- fective operation of the hiring hall. By contrast, referents who repeatedly fail to report for jobs face suspension from the hiring hall, a measure that actually does directly address the potential negative effects of repeated no- shows—and which is not challenged by the General Counsel. The Board has observed that a “refusal to refer for nonpayment of a fine is unlawful, at least ordinarily, re- gardless of why the fine was imposed.”4 The apparent implication of today’s decision, in contrast, is that a re- fusal to refer employees for nonpayment of attendance- related fines will ordinarily be permitted. This power to punish by denying employment, it seems to me, deserves stricter scrutiny than my colleagues give it. To be clear, I do not rule out finding, in specific factual circumstanc- es, that the denial of employment based on a hiring hall user’s failure to pay a union fine imposed for attendance infractions might be lawful. But in cases where the Board has found that a union may lawfully prevent an employee from being hired, it has generally done so based on a robust assessment of the factual circumstanc- es and the evidence adduced by the union to overcome the presumption of illegality.5 The record in this case— or rather the lack of it—should prevent the Board from upholding the challenged rule here. For these reasons, I respectfully dissent. 4 Fisher Theatre, 240 NLRB 678, 691 (1979). See also ILWU, Local 13 (Pacific Maritime Assoc.), 228 NLRB 1383, 1386 (1977), enfd. 581 F.2d 1321 (9th Cir. 1978), cert. denied 440 U.S. 935 (1979). 5 See, e.g., Boilermakers Local 40 (Envirotech Corporation), 266 NLRB 432, 432–433 (1983); Local 873, AFL–CIO, 250 NLRB 928, 928 fn. 3 (1980).