Petition — Emporium Capwell Co. v. Western Addition Community Organization

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Text

In the Supreme Court

OF THE

United States

—-—- —-—-

OctToRER TERM, 1973

No 629-696

THE Emporium CAPWELI Co.,

Petitioner,

VS.

WESTERN ADDITION COMMUNITY ORGANIZATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the District of Columbia

GeorGeE O. Banrs,

FREDERICK A. MORGAN,

Bronson, Bronson & McKINNON,

555 California Steet,

San Francisco, California 94104,

Attorneys for Petitioner.

pe —

Pauses or Graow S. Apame Patwrina, Inc., Wasmmweton, D. C.

=>,

Subject Index

ee te cea eh eheneelbewdsnaeukéessube

RR IGE Fe Ce ray Oe So = eS RGD me AS

Cee ee ceeebeenentwesennneuaes

Statutory provisions involved ...............ce cece csceees

ee ee bbeckeeeeéteueOauves

Reasons for granting the Writ .........ccscccccscccccceces

Il.

IIl.

IV.

The decision of the Court of Appeals for the District

of Columbia conflicts with decisions of the Seventh

I een

The decision of the Court of Appeals undermines a

central principle of our national labor policy, i.e., the

exclusive representation of employees by unions .....

The law is unclear as to the rights of minorities to

engage in concerted activities when they are repre-

sented by a union. This court should clarify the rela-

tionship between Title VII of the Civil Rights Act

of 1964 and Sections 7 and 9(a) of the LMRA ......

There is no need to fashion a new remedy under the

LMRA since the rights of minorities are adequately

ES GD 6 on connnndecddacicccrivecsececes

i a Clear teal

Table of Authorities Cited

Cases Pages

Cargo Handlers, Ine., 159 N.L.R.B. 321 (1966) .......... 9

MeDonneli Douglas Corp. v. Green, —. U.S. ........ 36 L.Ed.2d

BE as beh og cEUe eden cee cecsddetekbeedss 8

Moore v. Sunbeam Corporation, 459 F.2d 811 (7th Cir.

DEN cédusce eu 6eeeeeneducdistnsédedeundiéndcenenensen

N.L.R.B. v. Allis Chalmers Mfg. Co., 388 U.S. 175 (1967) 8

N.L.R.B. v. Draper Co., 145 F.2d 199 (4th Cir, 1944) .... 8

N.L.R.B. v. R. C. Can Co., 328 F.2d 974 (5th Cir. 1964) .. 8

N.L.R.B. v. Tanner Motor Livery, Ltd., 349 F.2d 1 (9th

Cir. 1964), 419 F.2d 216 (9th Cir. 1969) .............. 6

The Emporium, 192 N.L.R.B. No. 19 (1971) ............. 2

United Parcel Service, 205 N.L.R.B. No. 163 (1973) ...... 8

We M.S Ge CU CUED cvceckcccccceciscccecs 9

Western Addition Community Organization v. National

Labor Relations Board, No, 71-1656 (D.C. Cir. 1973) ... 2,8

Western Addition Community Organization v. The Em-

I We GEE ohn sin uSevdbuceesdidedbctecces 8

Codes

Judicial Code, 28 USC, Section 1254(1) ................. 2

Statutes

Civil Rights Act of 1870 and 1871, 42 USC:

SE MEE 5.5.0655606664686 hue ss Ueebenwandyidasess 3,8

EN EE ee dic eids peuy cee teak seenebaenuudns 3,8

Civil Rights Act of 1964, 42 USC, Sections 2000e et seq.. .3, 5, 7,8

Labor Management Relations Act:

Section 7 (29 USC, Section 157) ............cccccees 3,7,8

Section 9(a) (29 USC, Seetion 159(a)) .......... 3, 6, 7, 8,9

Section 10(f) (29 USC, Section 160(f)) ............. 2

Iu the Supreme Court

OF THE

Rnited States

OcroperR TERM, 1973

No.

THE Emportum CaPwWELL Co.,

Petitioner,

v8.

WESTERN ADDITION COMMUNITY ORGANIZATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the District of Columbia

Petitioner, The Emporium Capwell Co., respect-

fuliy prays that a Writ of Certiorari be issued to re-

view the judgment and opinion of the Unit:d States

Court of Appeals for the District of Columbia en-

tered in this proceeding on June 29, 1973.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the District of Columbia,’ the decision of the

National Labor Relatiuns Board,’ and the decision of

the Trial Examiner* appear in the Appendix hereto.

The Trial Examiner found that the Emporium (Peti-

tioner here and Intervenor below) did not commit

any unfair labor practice. The NLRB agreed and

dismissed the complaint. The Court of Appeals re-

versed, remanding the case to the NLRB for re

consideration.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on June 29, 1973. The time for filing this Peti-

tion for Certiorari was extended to October 27, 1973.

This Court has jurisdiction under 28 U.S.C. §1254(1).

The Court of Appeals took jurisdiction under §10(f)

of the Labor Management Relations Act.*

QUESTIONS PRESENTED

I. May a minority use concerted action to force

its employer to bargain with it on racial matters, even

though the employer has a duty to bargain exclusively

with a union ?

‘Western Addition Community Organization v. National Labor

Relations Board, No. 71-1656 (D.C. Cir, 1973).

*The Emporium, 192 N.L,.R.B. No. 19 (1971).

*Trial Examiner's Decision, appended to the Board's decision at

192 N.L.R.B. No. 19 (1971).

#29 U.S.C. §160(f).

II. Should the NLRB become an additional forum

to protect minority activities which are in derogation

of, or without the sanction of, the majority represen-

tative ?

III. Are otherwise unprotected activities of a

minority against its employer protected by the LMRA

merely because the union is arguably failing to rem-

edy alleged discrimination by the most “expedient”

and “efficacious” means ?

IV. Does Title VII of the Civil Rights Act of

1964 modify the LMRA so that otherwise unprotected

activities of a minority directed at racial discrimina-

tion become protected by the LMRA?

V. How can the LMRA and Title VII of the Civil

Rights Act of 1964 be accommodated without destroy-

ing the exclusivity principle of the LMRA?

STATUTORY PROVISIONS INVOLVED

Section 9(a) and 7 of the Labor Management Re-

lations Act (LMRA) are fully set out in the Ap-

pendix.

The pertinent section of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e-3(a), is set out

fully in the Appendix. The Civil Rights Acts of 1870

and 1871, 42 U.S.C. §§ 1981, 1983 are set out fully in

the Appendix.

STATEMENT OF THE CASE

In 1968 several department store employees com-

plained to their Union (Local 1100) of alleged racial

discrimination by their employer, the Emporium Cap-

well Co., the Petitioner here. The contract prohibited

such discrimination. The Union agreed to, and did,

investigate and prosecute their grievances.

Two of the employees disrupted the ensuing ad-

justment board proceedings where the union was pre-

senting evidence in support of their individual

charges of discrimination. The employees had been

urged by representatives of the Equal Employment Op-

portunity Commission of the United States (EEOC)

and the California Fair Employment Practices Com-

mission (FEPC) to pursue the contractual grievance

procedures. There was no evidence that their griev-

ances were not being vigorously processed on an

individual basis. Nevertheless, they refused to give

testimony, walked out of the hearing, and as self-

appointed representatives of al! minorities demanded

to bargain with the President of the Emporium on

a group basis. They held a press conference, and

engaged in picketing and handbilling, using libelous

and vituperative language throughout, referring to

slave conditions at the Emporium and eharacterizing

the employer as a racist pig. Continuing their ae-

tivities after two warnings, the employees were ter-

minated.

The Trial Examiner and the NLRB held that the

activities were not protected by the Labor Manage-

ment Relations Act. The Court of Appeals reversed

SS — — —-

on the grounds that the policy set forth in Title VII

of the Civil Rights Act of 1964° modified the doctrine

of exclusivity in the LMRA. Thus, the Court read

Title VII° as giving racial minorities special rights,

transcending the usual exclusive representation rights

of the majority representative.

On remand the Court of Appeals would have the

Board consider two questions as determinative of

whether the employees’ activities were protected by

the LMRA: (a) “. . . whether the Union was actu-

ally remedying the discrimination to the fullest ex-

tent possible by the most expedient and efficacious

means” and (b) whether the conduct of the employees

was so “disloyal” as to justify the discharges.

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT OF APPEALS FOR THE DIS-

TRIOCT OF COLUMBIA CONFLIOTS WITH DECISIONS OF

THE SEVENTH AND NINTH OIROCUITS.

In 1972, the Seventh Circuit held unprotected the

picketing of an employer by a minority employee

protesting an alleged discriminatory failure to pro-

mote, Moore v. Sunbeam Corp.’ The Court accepted

the Board’s view that the no-strike clause of the con-

tract prohibited such conduct, noting the national

policy favoring arbitration rather than coercive ac-

tivity.

542 U.S.C. §2000e.

#42 U.S.C. §2000e-3(a).

™Moore v. Sunbeam Corporation, 459 F.2d 811 (7th Cir., 1972).

Similarly, the Ninth Circuit in N.L.R.B. v. Tanner

Motor Livery* twice vacated the orders of the Board,

reinstating two employees discharged for picketing

their employer in protest of alleged discrimination.

The Court ruled that minorities must “first ... seek

action by a union majority” or otherwise their con-

certed activities are not protected by the LMRA.°

Both decisions are in clear conflict with the Court

of Appeals decision in this case, which declares that

Title VII creates an exception to Soction 9(a) of

LMRA.” That conflict should be resolved and, absent

legislation, can only be resolved by this Court.

Il. THE DECISION OF THE COURT OF APPEALS UNDERMINES

A CENTRAL PRINCIPLE OF OUR NATIONAL LABOR POLICY,

ie, THE EXCLUSIVE REPRESENTATION OF EMPLOYEES

BY UNIONS.

Exclusivity, of course, is plainly required by Sec-

tion 9(a) of the LMRA,. Employers can and must

bargain exclusively with the majority representative.

Exclusivity has been unswervingly applied by the

NLRB for 38 years and strengthened by many deci-

sions of this Court. That principle will be greatly

impaired if the Court of Appeals Decision stands.

Exclusivity is necessary for management and

unions in bargaining and in the administration of

contracts. Management must know with whom to bar-

8N.L.R.B. v. Tanner Motor Livery, Ltd., 349 F.2d 1 (9th Cir.

1964) and 419 F.2d 216 (9th Cir. 1969).

9419 F.2d at 221.

1929 U.S.C. §159(a).

gain and to whom it can look for finality in bargain-

ing responsibility. Unions must sort ovt cellective

and individuai rights in order to present a strong

united front. Inevitably, minority interests must be

subordinated to common goals.

The labor stability achieved m the American ex-

perience depends upon collective bargaining with ex-

clusive representation, enforceable contracts, and a

preference for arbitration.

By creating an exception to the principle of ex-

clusivity in the case of minority grievances, the Cir-

cuit Court has cast doubt on the validity of estab-

lished rights and duties of employers and unions.

Those legal guidelines developed by 38 years of ex-

perience and case law rest upon the principle of

exclusivity. It is difficult to see how the present col-

lective bargaining system can continue without main-

taining the principle of exclusive representation.

Ill. THE LAW IS UNCLEAR AS TO THE RIGHTS OF MINORITIES

TO ENGAGE IN CONCERTED ACTIVITIES WHEN THEY ARE

REPRESENTED BY A UNION. THIS COURT SHOULD

CLARIFY THE RELATIONSHIP BETWEEN TITLE VII OF

THE CIVIL RIGHTS ACT OF 1964 AND SECTIONS 7 AND 9(a)

OF THE LMRA.

The decision of the Court of Appeals for the Dis-

trict of Columbia states that Title VII modifies the

provisions of the LMRA" with respect to the pro-

tected status of racial minorities engaging in con-

certed activities. The law remains uncertain, particu-

1129 U.S.C, §157,

iarly because of the conflict with the other Circuits.”

In the absence of further legislation, only this Court

ean clarify the law by determining what accommoda-

tion, if any, should be made between the two Acts."

This Court should make that clarification.

IV. THERE IS NO NEED TO FASHION A NEW REMEDY UNDER

THE LMRA SINCE THE RIGHTS OF MINORITIES ARE ADE-

QUATELY PROTECTED ELSEWHERE.

Numerous remedies are already available safeguard-

ing rights of minorities in the collective bargaining

context:

(a) the Civil Rights Acts of 1870 and 1871" and

Title VII of the Civil Rights Act of 1964. (the

minority employees involved in this case are plain-

tiffs in a pending action under the Civil Rights Acts

of 1870 and 1964).

(b) the Fair Employment Practices Acts of the

States ;

The Board and the Courts have long struggled with the rights

of non-racial minorities to engage in concerted activities. The result

has been a confusion among the tests to be applied and this confu-

sion has carried over in the racial eases. Sce e.g., N.L.R.B. v. Allis

Chalmers Mfg. Co., 388 U.S. 175 (1967); N.L.R.B. v. R. C. Can

Co., 328 F.2d 974 (5th Cir, 1964); N.L.R.B. v. Draper Co., 145

F.2d 199 (4th Cir. 1944); Western Addition Community Organi-

zation v. N.L.R.B., supra (dissenting opinion); United Parcel

Service, 205 N.L.R.B. No. 163 (1973) (dissenting opinion).

_ ‘An accommodation has been reached where the minority ae-

tivity is illegal. It is not protected. McDonnell Douglas Corp. v.

Green, ........ U.S. ......... 36 L.E.2d 668, 678 (%973).

1442 U.S.C. §§1981, 1983.

'® Western Addition Community Organization v. The Emporium,

C-71-2137 CBR.

ms - oo —_—_

(ec) grievance procedures of collective agreements ;

(d) Section 9(a) protects an individual’s right to

process grievances without the intervention of the

bargaining representative ;

(e) the duty of fair representation is enforced

both by the NLRB and by the Courts.’®

There is no justification for making the NLRB yet

another forum to decide such cases.

CONCLUSION

For all the above reasons, and particularly to re-

solve the conflict among the Circuits and to clarify

the rights of minority concerted action with the re-

quirements of exclusive representation, Petitioner

prays that a Writ of Certiorari be issued to review

the judgment and opinion of the United States Court

of Appeals for the District of Columbia.

Respectfully submitted,

GeorceE O. BaHRs,

FrepericKk A. MorGAN,

Bronson, Bronson & McKINNoN,

Attorneys for Petitioner.

October, 1973.

(Appendix Follows)

16(/argo Handlers, Inc., 159 N.L.R.B. 321 (1966); Vaca v. Sipes,

386 U.S. 171 (1967).

hates

Appendix

DECISION OF CIRCUIT COURT OF APPEALS FOR DISTRICT OF

COLUMBIA IN WESTERN ADDITION COMMUNITY

ORGANIZATION NLRB

(OFFICIAL TEXT)

United States Court Of Appeals

for the District of Columbia Cireuit

No. 71-1656

)

Western Addition Community Organization

vs.

——

National Labor Relations Board, Respondent

The Emporium Capwell Company, Intervenor

for the District of Columbia Cireuit. ;

Decided June 29, 1973

Kenneth Hecht of the bar of the Supreme Court of

California, pro hac vice, by special leave of Court,

with whom Edward Steinman and Lee M. Modjeska

were on the brief, for petitioner.

Stephen C. Yohay, Attorney, National Labor Re-

lations Board, of the bar of the Court of Appeals of

New York, pro hac vice, by special leave of Court

with whom Marcel Mallet-Prevost, Assistant General

Counsel, and Abigail Cooley Baskir, Attorney, Na-

tional Labor Relations Board, were on the brief, for

respondent.

George O. Bahrs was on the brief for intervenor.

Martin I. Slate, Attorney, Equal Employment Op-

portunity Commission, of the bar of the United States

District Court for the District of Columbia pro hac

vice, by special leave of Court with whom Julia P.

Cooper, Chief, Appellate Section, Equal Employment

Opportunity Commission, was on the brief for Equal

Employment Opportunity Commission as amicus

curiae urging reversal.

Before Rosprnson and MacKinnon, Circuit Judges,

and CrHarLes Wyzanski* Senior U.S. District Judge

for the District of Massachusetts.

Opinion for the court filed by Circuit Judge Mac-

KINNON.

Dissenting opinion filed by Senior District Judge

WYZANSKI.

Western Addition Community Organization — v.

N.L.R.B. No, 71-1656

MacKInnon, Circuit Judge: This case is before us

on the petition of the Western Addition Community

Organization to review an order’ of the National

Labor Relations Board which dismissed a complaint

issued against the Emporium (hereinafter referred

to as the Company) for alleged violations of section

8(a) (1) of the National Labor Relations Act, as

amended, 29 U.S.C. § 151 et seq. (hereinafter referred

*Sitting by designation pursuant to Title 28 U.S.C. Section

294(d) (1970).

'The Board’s decision is reported at 192 NLRB No. 19, 77 LRRM

1669 (1971).

to as the Act).? The Company is engaged in the opera-

tion of a retail department store in San Francisco,

and was a member of a multi-employer group, the

Retailer’s Council, which served as its bargaining

agent. The Retailer’s Council, was a signatory to a

eollective bargaining agreement with the Department

Store Employees Union (hereinafter the Union)

which was the exclusive representative of the Com-

pany’s employees employed in the stock and marking

areas at the store. The applicable collective bargaining

agreement contained an anti-discrimination clause®

and provided that grievances arising out of the agree-

ment ‘‘may be referred to the Adjustment Board,’

and possibly submitted to arbitration.’ The agreement

also contained no-strike and no-lockout clauses.

In a series of meetings in early April 1968, a group

of Company employees including Tom Hawkins and

James Joseph Hollins submitted to the Union repre-

sentatives a list of grievances in which the employees

2Section 8(a) (1), 29 U.S.C. § 158(a) (1) provides:

(a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 of this title.

The clause provided:

Section 21(E), “No person shall be discriminated against in

regard to hire, tenure of employment or job status by reason

of race, color, creed, national origin, age or sex.”

4Section 5(B) of the agreement provided:

Section 5 (B), “Any act of any emplover, representative of

the Union, or any employee that is interfering with the faith-

ful performance of this agreement . . . may be referred to the

Adjustment Board for such action as the Adjustment Board

deems proper, and permissive within this agreement.”

5The agreement provided that if after considering a submitted

issue for one week the Adjustment Board was unable to reach a

settlement, either party could insist upon binding arbitration.

contended that the Company was discriminating

against racial minorities. Claiming that racial bias

had caused minority employees to be denied promo-

tions, the employees at the outset centered their com-

plaint and specifically charged that employee Russel

Young had been denied advancement solely because

he was Black, Following these meetings, Union Secre-

tary-Treasurer Walter Johnson designated a Union

committee to investigate the allegations, and later that

month prepared a detailed report outlining the em-

ployees’ contentions which ‘‘raised . . . the possibility

[not solely of Young’s complaint but] of racial dis-

crimination.” (Emphasis added.) Shortly thereafter,

Johnson presented his report to the Retailer’s Coun-

cil, where it was agreed that the grievances should

be taken directly to the Company. Accordingly, in

mid-April Johnson met with the Company labor re-

lations manager and it was agreed that the Company

“would look into” the situation and “see what they

could do.”

In May, a group of ten employees requested an

additional meeting with Johnson. The problem of

racial discrimination in general and the Russel Young

ease in particular were again discussed, however,

®This report stated:

Probably the most important matter raised was the possi-

bility of racial discrimination. This is outlawed under the terms

of the agreement and certainly again in this day and age should

not be a problem. It was the general feeling of almost all pres-

ent that discrimination is directed against the Negro employees

and the more senior employees, senior, that is, in the point of

age.

*Trial Examiner’s Decision, appended to the Board’s decision

192 NLRB No. 19, (hereinafter cited as TXD) at 3.

since Young was about to begin his summer vacation,

it was agreed that further investigation of the matter

should await his return.

On about September 3, Johnson again met with the

employees including Hawkins and Hollins, and with

representatives of the Fair Employment Practices

Committee (FEPC) and the Economie Opportunity

Council (EOC), and announced that the Union had

considered the problem and had concluded that the

Companr had been acting discriminatorily. Further,

the Union stated that it would demand an Adjust-

ment Board proceeding and would insist upon arbitra-

tion if necessary. While acknowledging that arbitra-

tion was a time-consuming procedure, Johnson pointed

out that the arbitration award, once achieved, would

produce a “‘long lasting effect” which would benefit

not only the employees having immediate interest

in the problem, but ‘‘other people involved in it”

as well.®

SJohnson further testified at the hearing before the Trial Ex-

aminer:

| Wle wanted to process these grievances and we felt thal

there were problems of discrimination and it was my own per-

sonal feeling that all the discriminatory acts should be proc-

essed and that we ought to follow through and take care of it

(A. 136).

. . .

[I]t was my feeling certain acts had to take place in order

that everybody at the Emporium would have an opportunity

not only to have a job, but to advance into positions (A. 137).

. . *

I specifically reqrested and pointed out that it is going to

take a long time in some of these cases, but that they would

not only be helping themselves, but other people involved in it,

because we had very strong feelings on the question (A. 136-

137). (Emphasis added. )

References are to the appendix in this case.

However, the program outlined by Johnson did not

satisfy all of the employees. Some of those present

expressed ‘‘frustration” with the situation and re-

quested that the Union picket the Company’s store.

Johnson rejected the idea and explained that the

Union was bound to seek satisfaction of grievances

according to the terms of the collective bargaining

agreement, He also stated that though he told the

minority employees, including Hawkins and Hollins,

that it was his advice that they follow the Adjustment

Board and arbitration procedures, he stated that ‘if

they wanted to take any other action they could do it

as individuals and do whatever they wanted as in-

dividuals.”” The EOC and FEPC representatives also

recommended that the contract procedures be fol-

lowed.

The next day Johnson wrote the general manager of

the Retailee’s Council requesting a meeting of the Ad-

justment Board to resolve the grievances discussed at

the previous day’s meeting. Johnson told the Council

We specifically charge the Emporium with vio-

lations of [the anti-discrimination clause] of the

Agreement between the San Francisco Retailers

Council and [the Union]. We have approximately

120 pages of testimony, recorded by a court re-

porter to substantiate our position. We are ready

to proceed to immediate arbitration if the Em-

porium is agreeable.'®

In response to this letter, on October 16 a meeting

was convened of the Adjustment Board.

*Append. at 149.

“TXD at 4.

As the meeting began, Union Agent Williams at-

tempted to present evidence of the Company’s prac-

tices by questioning employees regarding their indi-

vidual grievances. However, he was interrupted by

Hollins who, speaking for himself and three other

employees", read a prepared statement objecting to

the prosecution of grievances on an individual basis.

Those employees did not want to ‘‘speak as indi-

viduals,” but would act only ‘tas a group.”"* Further,

Hollins stated that the group ‘‘wanted to talk to the

President of the Emporium and wouldn't talk to any-

body else, since their ‘main purpose was to talk to

the President to try to reach an agreement with him

to straighten out the problems and conditions of the

Emporium.” Then, after refusing to give any testi-

“The other employees were identified at Hawkins, Epps and

Washington.

12 Hawkins testified:

The sense was that they [i.e., the Union| wanted to do some-

thing, but they wanted to go through the procedure of this re-

tailers counciling [sic] and it was going to be individually

when it came about when we were still talking group matters.

[I]t was individual persons that would say something and

on their behalf they would take it into consideration instead

of a group matter that we were talking about.

Q. Was this way of proceeding that the union seemed to

want to follow aeceptable to you?

A. No, it wasn’t.

Q. Why not?

A. Because we felt that like if we talked as individuals

well, they could only have a few cases, they would satisfy a few.

Like Mr. Young, he was the only one that really got something

out of the deal, he got a promotion. (Append. at 48-9).

Hollins testified:

I said that we didn't want to stay for the meeting that we

didn't feel like the meeting [of the Adjustment Board] was

really representing us because they wanted to take our case

as an individual thing and we were fighting it as a whole, not

an individual case. (Append. at 114).

8 Append. at 13.

mony regarding individual employees’ complaints,

the four walked out of the meeting. A second mecting

was held of the Adjustment Board two days later,

but none of the four attended."

Shortly thereafter, Hollins went to the Company

president requesting that they ‘‘talk about a situation

that [Hollins] felt should he discussed about things

that were happening among minority employees at

the store.”"” The Company president would not speak

to Hollins, but suggested that he talk instead to the

Company’s personnel director, Hollins refused to talk

to the personnel manager, having previously spoken

to him about the situation.

Hawkins and Hollins, together with several other

employees, called a press conference on October 22

which was attended by representatives of the press,

radio and television. The employees stated that the

Emporium was engaging in racist conduct by dis-

criminating against racial minorities and that the

employees were planning to picket the store. Hollins

also read a handbill which the group intended to

distribute to the public, and further stated that they

‘‘were planning on leafleting and boycotting the store

because [they] felt that employees were not being

treated fairly, minority employees were not being

treated fairly as far as working conditions was [sic]

“The record is unclear as to what transpired at this meeting.

The record does indicate that two minority employees were pro-

moted by the Company in the fall of 1968 before the November

picketing. TXD at 5.

'S5Append. at 121.

concerned.”**® On the following Saturday, November

2, Hollins, Hawkins and two other employees picketed

the store from 9:30 a.m. to 6 p.m., distributing the

following handbill to people entering and leaving the

store:

BEWARE EMPORIUM SHOPPERS

BOYCOTT IS ON!!!

For years at the Emporium black, brown, yel-

low, and red people, have worked at the lowest

jobs, at the lowest levels. Time and again we

have seen intelligent hard working brothers and

sisters denied promotions and basic respect.

The Emporium is a 20th century colonial plan-

tation. The brothers and sisters are being treated

the same way as our brothers are being treated in

the slave mines of South Africa.

Whenever the racist pig at the Emporium in-

jures or harms a black sister or brother, they

injure and insult all black people. The Em-

porium must pay for these insults. Therefore, we

encourage all of our people to take their money

out of this racist store, until black people have

full employment and are promoted justly through-

out the Emporium.

We welcome the support of our brothers and

sisters from the churches, union, sororities, fra-

ternities, social clubs, Afro-American Institute,

Black Panther Party, W.A.C.O. and the Poor

Peoples Institute.

While the picketing was in progress, Johnson spoke

with Hollis telling him that he did not want to see

16 Append. at 82.

Hollins fired and suggested that the only way to re-

solve the matter was through arbitration under the

collective bargaining agreement. Hollins responded

that they only wanted to talk with the Company presi-

dent.

On November 7 Hollins and Hawkins were called

to the office of the Company’s manager of labor rela-

tions and given a written warning to refrain from

the picketing or possibly be fired." Despite this warn-

ing, the two again picketed the store and distributed

leaflets the following Saturday. Accordingly, on Mon-

day, November 11, Hollins and Hawkins were fired.’

The Union subsequently filed a protest with the Re-

tailer’s Council challenging the discharges of Hollins

and Hawkins, though the Union did not initiate the

present action.

i7The warning message to Hollins read:

On October 22, 1968, you issued a public statement at a press

conference to which all newspapers, radio, and TV stations were in-

vited. The contents of this statement were substantially the same

as those set forth in the sheet attached. This statement was broad-

cast on Channel 2 on October 22, 1968 and Station KDIA.

On November 2nd you distributed copies of the attached state-

ment to Negro customers and prospective customers, and to other

persons passing by in front of The Emporium.

These statements are untrue and are intended to and will, if

continued injure the reputation of The Emporium.

There are ample legal remedies to correct any discrimination

you may claim to exist. Therefore, we view your activities as a

deliberate and unjustified attempt to injure your employer.

This is to inform you that you may be discharged if you repeat

any of the above acts or make any similar public statement.

The message given to Hawkins was essentially identical.

The discharge siip stated: You are being discharged today.

Distribution of “Boyeott Emporium” literature on Saturday, No-

vember 9, 1968, in front of the Emporium, 855 Market Street. S. F.,

Haan to written warning dated 11/7/68 for similar action on

/é ,

On November 19, 1968 the Western Addition Com-

munity Organization filed a charge with the N.L.R.B.

alleging that the Company had violated section 8(a)

(1) of the Act by discharging Hollins and Hawkins.

A complaint was issued and a hearing was held on

April 8, 1969 before Trial Examiner William E. Spen-

cer. He found that petitioners had engaged in ‘‘con-

certed activity” within the meaning of section 7 of the

Act,’® and that these actions had been based on a good

faith belief that the Company was actue!ly discrimi-

nating against racial minoiides.*® The Trial Examiner

next examined whether these concerted activities lost

their protection by virtue of the boycott appeal and

the invective used against the Company. Though he

criticized the language, and found ‘‘the potential for

injury [to the Company] considerable,”*' he expressed

no conclusion on this issue. Finally, he examined

the issue of whether the concerted activities lost their

protection because they were ‘‘inconsistent with and

disruptive of” the procedures for settling grievances

under the collective bargaining agreement to such a

degree that it ‘‘would not effectuate the policies of

19Section 7, 29 U.S.C. § 157 (1970), provides: Emplovees shall

have the right to self organization, to form, Join, or assist labor

organizations, to bargain collectively through representatives of

their own choosing, and to engage in other concerted activities for

the purpose of collective bargaining or other mutual aid or protee-

tion and shall also have the right to refrain from any or all of such

activities except to the extent that such right may be affected by

an agreement requiring membership in a labor organization as a

condition of employment as authorized in section 158(a)(3) of

this title.

20TXD at 10.

217d. at 13.

the Act to extend its protection to such activities.””

The Trial Examiner found that the activities were

unprotected and recommended that the complaint be

dismissed. He reasoned that to protect such conduct

would seriously undermine the right of employees

to bargain collectively through representatives of

their own choosing, handicap and prejudice the

employee’s duly designated representative in its

efforts to bring about a durable improvement in

working conditions among employees belonging to

racial minorities, and place on the Employer an

unreasonable burden of attempting to placate self-

designated representatives of minority groups

while abiding by the terms of a valid bargaining

agreement and attempting in good faith to meet

whatever demands the bargaining representative

put forth under that agreement.**

The Board affirmed the rulings of the Trial Ex-

aminer, and adopted his findings, conclusions, and

recommendations. Two members dissented.**

of the Act protects employees from dis-

charge for engaging in protests against their employ-

er’s racially discriminatory practices. N.L.R.B. v. Tan-

ner Motor Livery, Ltd., 349 F.2d 1, 4 (9th Cir. 1965) ;

Mason-Rust, 179 NLRB 434 (1969); Washington

State Service Employees State Council No, 18, 188

NLRB No. 141 (1970). Such protests in favor of non-

Section

227d. at 9.

Td. at 15, :

*4Members Jenkins and Brown each filed dissenting opinions.

discriminatory working conditions are ‘‘concerted ac-

tivities for the purpose of collective bargaining,”

within the meaning of that section. Extending the

protection of section 7 to such protests is but one

aspect of the national labor policy which unequivocally

rejects racial discrimination in employment. See, e.g.,

New Negro Alliance v. Sanitary Grocery Co., 303

U.S. 552 (1938).

Another aspect of national labor poliey, and cer-

tainly a central tenet of the Act’s structure, is set out

in section 9(a) which provides that the representa-

tives of the bargaining unit ‘‘shall be the exclusive

representatives for all the employees in such unit for

the purposes of collective bargaining in respect to

rates of pay, wages, hours of employment, or other

conditions of employment” (emphasis added).*°

Recently, in N.L.R.B. v. Allis-Chalmers Mfg. Co.,

388 U.S. 175 (1967) the Supreme Court underscored

the purpose of the exclusivity principle enunciated in

section 9(a) :

2599 U.S.C. § 159(a) provides in full:

(a) Representatives designated or selected for the pur-

poses of collective bargaining by the majority of the employees

in a unit appropriate for such purposes, shall be the exclusive

representatives of all the employees in such unit for the pur-

poses of collective bargaining in respect to rates of pay, wages,

hours of employment, or other conditions of employment: Pro-

vided, that any individual employee or a group of employees

shall have the right at any time to present grievances to their

emplover and to have such grievances adjusted, without the

intervention of the bargaining represcutative, as long as une

adjustment is not inconsistent with the terms of a collective-

bargaining contract or agreement then in effeet: Provided

further, That the bargaining representative has been given

opportunity to be present at such adjustment.

National labor policy has been built on the

premise that by pooling their economic strength

and acting through a labor organization freely

chosen by the majority, the employees of an ap-

propriate unit have the most effective means of

bargaining for improvements in wages, hours, and

working conditions. The policy therefore extin-

guishes the individual employee’s power to order

his own relations with his employer and creates

a power vested in the chosen representative to act

in the interests of all employees. “Congress has

seen fit to clothe the bargaining representative

with powers comparable to those possessed by a

legislative body both to create and restrict the

rights of those whom it represents... .” Steele

v. Louisville & N.R. Co., 323 U.S. 192, 202. Thus

only the union may contract the employee’s terms

and conditions of employment and provisions for

processing his grievances; the union may even

bargain away his right to strike during the con-

tract term; and his right to refuse to cross a law-

ful picket line. The employee may disagree with

many of the union decisions but is bound by them.

“The majority-rule concept is today unquestion-

able at the center of our federal labor policy.”

“The complete satisfaction of all who are repre-

sented is hardly to be expected. A wide range of

reasonableness must be allowed a statutory bar-

gaining representative in serving the unit it rep-

resents, subject always to complete good faith

and honesty of purpose in the exercise of its

discretion.” Ford Motor Co. v. Huffman, 345

U.S. 3380, 338.

388 U.S. at 180 (footnotes omitted). See also, J.I.

Case v. Labor Board, 321 U.S. 332 (1944).

Similarly, the legislative history of section 9(a)

emphasizes that the primary purpose of giving the

elected representative the exclusive right to repre-

sent all members of the bargaining unit in discussions

with the employer over working conditions was to

prevent the situation where two or more agreements

might be negotiated by splinter groups which treated

various factions of the bargaining unit unequally. The

House Report summarized the purposes of section

9(a) thusly:

The underlying purposes of the majority rule

principle are simple and just. As has frequently

been stated, collective bargaining is not an end

in itself; it is a means to an end, and that end

is the making of collective agreements stabilizing

employment relations for a period of time, with

results advantageous both to the worker and the

employer. There cannot be two or more basic

agreements applicable to workers in a given unit;

this is virtually conceded on all sides, If the em-

plover should fail to give equally advantageous

terms to non-members of the labor orginzation ne-

~otiating the agreement, there would immedi-

atedly result a marked increase in the member-

ship of that labor organization. On the other

hand, if better terms were given to nonmembers,

this would give rise to bitterness and strife, and

a wh illy unworkable arrangement whereby men

performing comparable duties were paid accord-

ing to different scales of wages and hours. Clearly

then, there must be one basic scale, and it must

apply to all.

I.R. Rep. No, 1147 on S. 1958, 74th Cong., Ist Sess.

at 20, in II Legislative History of the National Labor

Relations Act, 1935 (N.L.R.B. 1949) at 3069. Un-

equal treatment of members of the same bargaining

unit could only produce bitterness, strife, and, ulti-

mately, industrial instability—a prime target at which

the Act was aimed, 29 U.S.C. § 151 (1970). Addition-

ally, the cases have noted that the exclusivity of the

bargaining representative helps to preserve an or-

derls procedure for collective bargaining by preclud-

ing the employer from bargaining with splinter

groups. Medo Photo Corp. v. N.L.R.B., 321 US.

678, 685 (1944).

These objectives of section 9(a) have been effectu-

ated by provisions within the Act which restrict em-

ployers’ conduct and case law which has restricted

employees’ conduct which interferes with that section.

It is an unfair labor practice under sections 8(a) (1)

and (5) of the Act for an employer to refuse to bar-

gain with the duly elected union representative or to

engage in bargaining with splinter groups. Medo

Photo Corp. v. N.L.R.B., supra. Similarly, the rights

protected by section 7, for employees to engage in

concerted activity, have been held to be somewhat lim-

ited by section 9(a), though the boundaries of that

limitation are by no means definite. The cases have

not produced a uniform approach to determine when

concerted activity by a minority of employees loses

the protection of section 7 due to a conflict with the

exclusivity of the bargaining representative provided

by section 9(a). One approach has been to protect

minority concerted activity, such as walkouts or pick-

eting, whenever it is not in derogation of the union’s

position on the matter in question, t.e., when the con-

certed activity supports the position taken by the

union. See, e.g., N.L.R.B. v. R.C. Can Co., 328 F.2d

974 (Sth Cir. 1964); Western Contracting Corp. v.

N.L.21..B., 322 F.2d 893 (10th Cir, 1965) .?°

Another approach, and now apparently more widely

accepted, has been to find the minority concerted ac-

tivity protected only when it is not disruptive of the

concept of orderly collective bargaining, regardless of

whether the activity might be deemed to be supportive

of the union’s position. See, e.g., N.L.R.B. v. Tanner

Motor Livery, Ltd., 419 F.2d 216 (9th Cir. 1969) ;

ef. N.L.R.B. v. Shop Rite Foods, 430 F.2d 786 (5th

Cir. 1970). In Tanner, supra, two employees were dis-

charged for picketing their employer in protest over

its racially discriminatory hiring practices. The two

employees had not attempted to utilize their union

representative to remedy the situation, and the union’s

position on their claims was not know (sic). Though

the court agreed that such picketing was concerted

activity within section 7, it found that section 9(a)

deprived the picketing of the protection to which it

would otherwise would have been entitled.

268re also. First National Bank of Omaha v. N.L.R.B., 413 F.2d

991. 926 (Sth Cir. 1969) (dictum); N.L.R.B. v. Rubber Rolls, Ine.,

888 F.2d 71. 73 (3rd Cir. 1967) (dictum); Lee A. Consaul Co.,

175 NLRB 547, 549 (1969), enf. denied, 469 F.2d 84 (9th Cir.

1972): Shop Rite Foods, Ine., 171 NLRB 1498, 1510 (1968), modi-

fied, 430 F.2d 786 (5th Cir. 1970); San Juan Lumber Co., 154

NLRB 1153. 1163 (1965), enf’d., 367 F.2d 397 (9th Cir. 1966).

The decision in R.C. Can, supra, has come increasingly under

attack. See, e.g., Lee A. Consaul Co. v. N.L.R.B., 469 F.2d 84, 85

(9th Cir. 1972); N.L.R.B. v. Tannor Motor Livery, Ltd., 419 F.2d

216, 221 (1969); N.L.R.B. v. Shop Rite Foods, 430 F.2d 786, 790-91

(5th Cir. 1970).

The court specifically rejected the rationale of B.C.

Can, supra, and reasoned that the concept of orderly

collective bargaining could only be promoted if em-

ployees were held to have “an obligation to go to the

union with their desire for non-discriminatory hir-

ing.”*? An analogous position has been taken by a

number of courts with respect to “wild cat” strikes

which hold that such minority activity is so disrup-

tive of collective bargaining that it can never be pro-

tected by section 7. Lee A. Consaul Co. v. N.L.R.B.,

469 F.2d 84 (9th Cir. 1972); N.L.R.B. v. Sunbeam

Lighting Co., 318 F.2d 661 (7th Cir. 1963); Plasté-

Line, Inc. v. N.L.R.B., 278 F.2d 482 (6th Cir. 1960) ;

Harnischfeger Corp. v. N.L.R.B., 207 F.2d 575 (7th

Cir. 1953); N.L.R.B. v. Draper Corp., 145 F2d 199

(4th Cir, 1944).

II.

With this brief discussion of section 9(a) and the

cases interpreting the interplay between it and section

7, we examine the application of the exclusivity prin-

ciple to the minority concerted activities in this case.

We conclude that the Board’s decision that these con-

certed activities were not protected by the Act is not

supported by substantial evidence in the record and

must be reversed. As our discussion below makes

clear, we base this conclusion on the distinction be

tween concerted activity involving racially discrimina-

tory employment practices and concerted activity

involving other working conditions, an analysis of the

exclusivity principle, and the particular facts of this

27419 F.2d at 221.

ease. We recognize the important role played by the

exclusivity principle in collective bargaining and feel

that our decision here in no way hampers that role.

In part ITI, infra, we note that on remand the Board

may consider the issue of disloyalty.

A. Concerted Activity Involving Racial Diserimina-

tion

The right of an employee to racially non-diserimina-

tory treatment is unquestionally (sic) a “condition of

employment” and as such the negotiation of an anti-

discrimination clause in a collective bargaining agree-

ment is within the purview of the exclusive bargain-

ing enunciated in section 9(a), Yet, this right to non-

discriminatory treatment differs significantly from

other “conditions of employment” which are also the

subject of exclusive bargaining, such as pension bene-

fits or seniority rights. The right to be free of va-

cially discriminatory employment practices does not

depend upon the presence of an anti-diserimination

clause in a collective bargaining agreement, but is

firmly rooted in the law. Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq.; United Pack-

inghouse Workers Union v. N.L.R.B., 135 U.S. App.

D.C. 111, 416 F.2d 1126, cert. denied, 396 U.S. 903

(/069). Even in the ebdsence of such a clause in a

collective bargaining agreement, an employer would

be equally restrained from engaging in such prac-

tices.”*

28Similarly, any analysis of whether concerted activity in protest

over racial discrimination in employment was protected vel mon in

light of section 9(a) cannot turn on the fact that the collective bar-

Not only does concerted activity involving racial

discrimination have a unique status in that the sub-

ject matter has independent statutory bases, but see-

tion 704(a) of Title VIL precludes an employer from

discharging employees in retaliation for peaceful pick-

eting of the employer’s business in protest of allegedly

discriminatory racial practices,” Cf. Green v. MeDon-

nell-Douglas Corp., 463 F.2d 337, 341 (8th Cir. 1972),

aff'd, 4. USL.W. 4051 (U.S., May 14, 1973). Where,

as here, both the subject matter of the concerted aec-

tivity and the right to engage in such activity are

safeguarded by legislation, we feel such concerted ae-

tivity cannot be treated identically with other con-

certed activity which is not so safeguarded for the

purpose of determining whether it so violated section

9(a) as to loose section 7 protection,

Neither the Trial Examiner nor the Board took cog-

nizance of the statutory bases of the rights involved

in their evaluation of the undermining effect of these

concerted activities to section 9 (a).°° While these ac-

gaining agreement contained an anti-diserimination elause. Sec

N.L.R.B. vy. Tanner Motor Livery, Ltd., 419 F.2d 216, 221 (9th

Cir. 1969). We assume that even in the absence of such a clause,

seetion 7 activity would be equally restrained by section 9(a)—

whatever the extent of that limitation might be.

2942 U.S.C. § 2000e-3(a) (1970) provides:

(a) It shall be an unlawful employment practice for an

employer to discriminate against any of his employees or appli-

eants for employment, for an employment ageney to diserimi-

nate against any member thereof or applicant for membership,

because he has opposed any practice made an unlawful em-

ployment practice by this subchapter, or beeause he had made

a charge, testified, assisted, or participated in any manner in

an Investigation, proeecding, or hearing under this subchapter.

**Both dissenting members criticized the Board for not eonsider-

ing the legislative policies embodied in Title VII. 192 NLRB No.

19 at 17, 23.

tivities are the subject of review by the Board only

because they are deemed to be “concerted activities”

within section 7 and also involving “conditions of em-

ployment” within section 9 (a), the Board has an

obligation in construing the acts which it administers

to recognize, and sometimes reconcile, co-existing and

perhaps inconsistent policies embodied in other legis-

lation. As the Supreme Court noted in Southern

Steamship Co. v. N.L.R.B., 316 US. 31, 47 (1942):

[T]he Board has not been commissioned to effee-

tuate the policies of the Labor Relations Act so

single-mindedly that it may wholly ignore other

and equally important Congressional objectives.

Frequently the entire scope of Congressional pur-

pose calls for careful accommodation of one statu-

tory scheme to another, and it is not too much

to demand of an administrative body that it un-

dertake this accommodation without excessive em-

phasis upon its immediate task.

See also, Textile Workers v. Lincoln Mills, 353 U.S.

448, 456-58 (1958) ; ef. MeLean Trucking Co. v. United

States, 321 U.S. 67, 79-80 (1944)*'; Northern Natural

31Jn McLean Trucking Co., supra, the Supreme Court stated:

To secure the continuous, close and informed supervision

which enforeement of legislative mandate frequently requires,

Congress has vested expert administrative bodies such as the

Interstate Commeree Commission with broad diseretion and

has charged them with the duty to exeeute stated and specific

statutory policies. That delegation does not necessarily include

either the duty or the authority to execute numerous other

laws. Thus, here, the Commission has no power to enforce the

Sherman Act as such. It cannot decide definitively whether the

transaction contemplated constitutes a restraint of trade or an

attempt to monopolize which is forbidden by that Act. The

Commission's task is to enforee the Interstate Commerce Act

and other legislation which deals Specifically with transporta-

tion facilities and problems. That legislation constitutes the

Gas Co. v. F. 1. C., 130 US. App. D.C. 220, 226-28,

399 F.2d 953, 959-61 (1963).

Thus, the Board should have recognized that in light

of Title VII, concerted activity involving racial dis-

crimination is quite distinct from other concerted ac-

tivity.

B. Interference with Section 9(a)

As we noted previously,” the exclusivity principle

enunciated in section 9(a) of the Act was premised on

the concept of majority rule. This concept—that what

was best for the union was best for the individual—

recognized that collective bargaining could not proceed

where various factions within the bargaining unit were

free to present conflicting or unequal demands to the

employer. Subjection of the will of the individual to

the will of the majority was the method Congress

chose to preserve industrial peace and stability over

matters in which individuals would most likely dis-

immediate frame of reference within which the Commission

operates; and the policies expressed in it must be the basic de-

terminants of its action.

But in executing those policies the Commission may be faced

unth overlapping and at times inconsistent policies embodied in

other legislation enacted at different times and with different

problems in view. When this is true, it cannot, without more,

ignore the latter. The precise adjustments which it must make,

however, will vary from instance to instance depending on the

extent to which Congress indicates a desire to have those poli-

cies leavened or implemented in the enforcement of the various

specific provisions of the legislation with which the Commis-

sion is primarily and directly concerned. Cf. National Broad-

easting Co. v. United States, 319 U.S. 190; New York Central

Securities Corp. v. United States, 287 U.S. 12.

321 U.S. at 79-80 (emphasis added).

52See part 1, supra.

agree. However, on the issue of whether to tolerate

racial discrimination in employment the individuals in

a union cannot legally disagree. The law does not

give the union an option to tolerate some racial dis-

crimination, but declares that a// racial discrimination

in employment is illegal. 42 U.S.C. § 2000e-2 (1970).**

Therefore, the underlying premise of section 9(a) that

the will of the individual must be subjected to the

will of the majority does not authorize the approval

of racially discriminatory employment practices, be-

cause the purposes of the minority group and the

union in desiring to eradicate racial discrimination in

employment cannot be at odds. Accordingly, concerted

activity involving racial discrimination involves other

factors than the major premise that underlies section

9(a).

While concerted activity over actual racial diserimi-

nation differs significantly from coneerted activity

over other working conditions and does not defeat the

underlying premise of section 9(a), nonetheless we

recognize that such activity as was engaged in here

3342 U.S.C. §2000e-2(a) (1970) provides:

(a) It shall be an unlawful employment practice for an em-

plover—

(1) to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with re-

spect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way

which would deprive or tend to deprive any individual of em-

ployment opportunities or otherwise adversely affect his status

as an employee, because of such individual's race, color, reli-

gion, sex, or national origin.

does interfere to a certain extent with the collective

bargaining process. In abandoning the grievance pro-

cedures and seeking to bargain** on their own, the

picketers here rendered essentially ineffective the

method of remedying grievances chosen by their col-

lective bargaining representative and provided by the

collective bargaining agreement.” We cannot agree

with the Board, however, that this limited interference

alone is sufficient to remove these concerted activities

here from the protection of the Act.

First, we note that petitioners did not immediately

proceed to settle their dispute with the Company over

racial discrimination on their own, but utilized the

procedures provided by the collective bargaining

agreement for several months, Thus, the situation was

quite different, and less disruptive of collective bar-

gaining, than the one confronted by the Ninth Cireuit

in Tanner, supra, where no attempt had been made

to utilize the union representative or the contract pro-

cedures before engaging in minority concerted activ-

ity. We agree with Tanner that even when racial is-

*#Petitioners argue that ‘ey only wanted to “talk” with the

Company's president and “diseuss” the situation. They dispute the

Trial Examiner’s finding that Hawkins and Hollins activities were

“no mere presentation of a grievance, but nothing short of a de-

mand that [the Company] bargain with the picketing employees

for the entire group of minority employees.” TXD at 14. However,

we can see no reason to disturb this finding.

%5We can find nothing in the collective bargaining agreement

that would have prevented the Union from proceeding on a class

basis, representing all minority employees, but the method of pro-

eedure would have still required essentially the presentation of evi-

dence with respect to individual employees.

sues are at stake, one should be required to submit

such disputes first to the union before one resorts to

minority concerted activity.**

Without such a requirement, parties aggrieved by

racially discriminatory employment practices would

have little incentive to use the grievance procedures

in the agreement, and certainly national labor policy

favors the use of grievance-arbitration procedures to

settle labor disputes, see, e.g., Boys Markets, Inc. v.

Retail Clerks Union, 398 U.S. 235, 242-43 (1970), even

when they involve racial discrimination. Though the

exact role of grievance-arbitration procedures in en-

forcing rights created by Title VII is presently the

subject of considerable dispute: see Meltzer, Labor

Arbitration and Overlapping and Conflicting Reme-

dies for Employment Discrimination, 39 U. Cur, L.

Rev. 30 (1971), we think grievance-arbitration proce-

dures can play an important role in remedying racial

discrimination in employment and should be encour-

aged. Sec, e.g., Hutchings v. U.S. Industries, 428

F.2d 303, 309 (5th Cir. 1970) .**

Second, we find it significant that the Union and

the petitioners were not working at croess-purposes,

36We note that an employee has not been required to resort to

contract grievance procedures, however, before maintaining a Title

VII action. Parmer vy. Nat. Cash Register Co., 346 F.Supp. 1043,

1049 (S.D. Ohio 1972); Evans v. Local Union 2127, 313 F. Supp.

1354, 1358 (N.D. Ga. 1969); Bremer v. St. Louis S. W. R. R., 310

F. Supp. 1333, 1337-38 (E.D. Mo. 1969); King v. Georgia Power,

295 F. Supp. 948 (N.D. Ga. 1968).

37See also, Gould, Labor Arbitration of Grievances Involving

Racial Discrimination, 118 U.Pa.L.Rev. 40 (1969).

but were both attempting to eradicate racially discrim-

natory employment practices.**

There was no disruption of orderly collective bar-

gaining in the sense that a minority of employees were

not attempting here to speak for the majority as in

the case where a minority group engages in a “wild-

“at” strike during company-union negotiations in an

attempt to express a rejection of a company offer.

See, e.g, NLRB. v. Sunbeam Lighting Co., 318 F.2d

6GEi (7th Cir, 1963). Third, we note that after pursu-

ing their grievances on an individual basis for several

mouths, petitioners asked their elected representative

to proceed on a “group” basis,*® e., to represent. all

minority employees affected by the alleged discrimina-

tion. The Union declined to change its pending com-

plaint to proceed on a “group” basis. At this point

petitioners abandoned the pending grievance proce-

dure which had been initiated on their behalf and en-

gaged in coneerted activity allegedly on behalf of all

minority employees. We think these facts indicate

that though the immediate adjustment board proceed-

ings were disrupted, this disruption cannot wholly de-

stroy the protection afforded these employees by see-

tion 7, especially in light of the express protection

mandated by Title VIL and the limited interference

with section 9(a).

‘Indeed, if the Union were not working to eradicate racially

discriminatory employment practices, it would not only be violating

its statutory duty of fair representation, Vaca v. Sipes, 386 U.S.

171, 182 (1967), but also committing an unfair labor practice, sce,

e.g.. Loeal 12, United Rubber Workers v. N.L.R.B., 368 F.2d 12

(oth Cir, 1966), cert. denied, 389 U.S. 837 (1967).

See note 12, supra,

There is nothing in the record before us to indicate

that the union’s decision to remedy the charges of dis-

crimination by proceeding on an individual rather

than a group or class basis was made in bad faith.*”

The union may well have thought it had chosen the

most efficacious method to handle the charges, and it

may have done so. Nonetheless, it might be that these

charges could have been handled on a group or class

basis. Had the union’s decision to process only indi-

vidual grievances been made to delay the ultimate

eradication of discrimination, or been motivated by

similar bad faith considerations, clearly it would have

breached its duty of fair representation of all of its

members. See, e.g., Ford Motor Co. v. Huffman, 345

U.S. 330 (1953) ; Steele v. Louisville d& Nashville R.R.,

323 U.S. 192 (1944) ; Tunstall v. Brotherhood of Loco-

motive Firemen, 323 U.S. 210 (1944). Under such

circumstances a union’s decision to proceed on an

individual basis could not, in our view, prevent a mi-

nority from attempting to proceed by means of an-

other alternative method. Yet, even where the might

be no bad faith on the part of the union, we recog-

4°The record contains a number of uncontradicted references to

the fact that the union was proceeding on an individual basis. How-

ever, it also appears that the union charged the employer with

“racial discrimination” and alleged broad violations in the April

11, 1968 Report (General Counsel Ex. 7, Tr. 190-194). Thus, re-

gardless of the nomenclature used, it may well be that the union

was bringing all the charges that were supported by evidence.

Whether this constituted proceeding on an individual basis or some

other broader basis is impossible for us to determine. We reeognize

that a “group” action must necessarily depend upon a number of

individual cases. The important consideration is not how the pro-

ceeding might be characterized but whether the union is proceeding

against all discrimination.

nize that the method chosen by a union might not be

the most efficacious or expedient.

For example, the union might be vigorously proc-

essing individual grievances before an adjustment

board, while it would be more efficient and thus

preferable for it to be attempting to engage in ecol-

lective bargaining negotiations with the employer for

all minorities to eliminate all the discriminatory em-

ployment practices. In such a case, we do not think

the method or means chosen by the union should pre-

clude a minority group who have reasonable grounds

for believing that the union is not proceeding against

all discrimination from attempting to assert their

~¢laim of racial discrimination in a manner which they

consider would be more successfal, Otherwise, as Mem-

her Jenkins observed in dissent, a union “would [be]

permit[ted] ... to control the scope, direction, pace

and degree of racial discrimination.” We agree that

the eradication of racial discrimination in employ-

ment cannot be subjected to such a restriction. Thus,

the Labor Board should inquire, in eases such as this,

whether the union was actually remedying the dis-

crimination to the fullest extent possible by the most

expedient and efficacious means. Where the union’s

efforts fall short of this high standard, the minor-

ity group’s concerted activities cannot. lose its section

i protection,

The Trial Examiner reasoned that orderly collee-

tive bargaining would be undermined by protecting

*1192 NLRB No. 19, slip op. at 11.

this concerted activity because it would impose upon

the Company “an unreasonable burden” of having to

bargain with appellants while, at the same time, deal-

ing with the Union representative in the grievance

procedure.” Certainly collective bargaining must be

orderly in the sense that no stable, meaningful agree-

ment ean be reached where various factions are free

to make conflicting demands upon an employer. The

avoidance of such a state of affairs, as we have noted,

was the prime motivation behind the exclusivity prin-

ciple of section 9(a).“* We can see nothing in that

principle, however, which indicates that it was in-

tended to be used as a shield to protect an employer

from the “burden” of having to deal with two groups

on the same subject. We cannot agree that any in-

convenience which the Company might experience in

being required to bargain with the minority here while

still participating in the grievance procedures justifies

withdrawing section 7 protection from these concerted

activities.

ITT.

On remand the Board may consider the issue of

whether the picketing of these employees, considering

the language used, was so disloyal to their employer

as to remove them from the protection of section 7.

N.L.R.B. v. Local Union No. 1229 (Jefferson Stand-

ard), 346 U.S. 464 (1953). Neither the Board nor

the Trial Examiner decided this issue, though the

422TXD at 15.

43See pp. 8-11, supra.

latter discussed it at considerable length.** While we

do not express any opinion on the merits of this is-

sue, we note that in considering it on remand the

Board should closely examine the facts to ensure that

neither racial discrimination nor adversity toward

these concerted activities motivated the Company in

its decision to discharge the employees. As the Su-

preme Court observed in Jefferson Standard, supra:

The legal principle that insubordination, disobed-

ience or dislovalty is adequate cause for discharge

is plain enough. The difficulty arises in determin-

ing whether, in fact, the discharges are made be-

cause of such a separable cause or because of

some other concerted activities engaged in for the

purpose of collective bargaining or other mutual

aid or protection which may not be adequate cause

for discharge.

346 U.S. at 475. Such a factual determination is es-

pecially important here because any discharge which

was racially motivated would be an unfair labor

practice, United Packinghouse Workers Union v.

N.L.R.B., 135 U.S. App. D.C. 111, 416 F.2d 1126, cert.

denied, 396 U.S. 903 (1969); moreover any discharge

due solely to the employer’s objection against lawfully

protesting his allegedly discriminatory employment

practices would be unlawful. N.L.R.B. v. Tanner

Motor Livery, Ltd., 349 F.2d 1 (9th Cir. 1965).

“TXD at 11-13.

Title VII also recognizes that an employee may be properly

discharged for engaging in disloval conduct, if that is the real

cause of the discharge. However, the discharge would be unlawful,

and the employee subject to reinstatement, if it were due to the

fact that the employee had opposed certain employment practices

For these reasons the decision and order of the

Board are reversed and remanded to the Board for

further proceedings consistent with the opinion.

Judgment accordingly.

WyzanskI, Senior District Judge, dissenting: I re-

gret my view of the facts and the law differ in some

respects from my brethren’s excellent opinion, As I

made illegal by Title VII. 42 U.S.C.A. § 2000e-5(g) (1972 Supp.)

provides:

(gz) if the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful employ-

ment practice charged in the complaint, the court may enjoin

the respondent from engaging in such unlawful employment

practice, and order such aflirmative action as may be appro-

priate, which may include, but is not limited to, reinstatement

or hiring of emplovees, with or without back pay (payable by

the employer, employment agency, or labor organization, as

the case may be, responsible for the unlawful employment prae-

tice) or any other equitable relief as the court deems appro-

priate. Back pay liability shall not aecrue from a date more

than two years prior to the filing of a charge with the Com-

mission. Interim earnings or amounts carnable with reasonable

diligence by the person or persons discriminated against shall

operate to reduce the back pay otherwise allowable. No order

of the court shall require the admission or reinstatement of an

individual as a member of a union, or the hiring, reinstatement,

or promotion of an individual as an employee, or the payment

to him of any back pay. If such individual was refused admis-

sion, suspended, or expelled, or was refused employment or

edvancement or was suspended or discharged for any reason

other than discrimination on account of race, color, religion,

sex, or national origin or in violation of section 2000-3(a) of

this title (Emphasis added. )

Section 2000e-3(a) provides:

(a) It shall be an unlawful employment practice for an

employer to discriminate against any of his employees or ap-

plicants for employment, for an employment agency, or joint

labor-management committee controlling apprenticeship or

other training or retraining, including on-the-job training pro-

gramis, to discriminate against any individual, or for a labor

see it, we have enough to decide unequivocally the

question whether the NLRB properly concluded that

the Emporium Capwell Co. did not violate Section

S(a)(1) of the National Labor Relations Act when

it discharged employees James Joseph Hollins and

Tom Hawkins.

This case is before the Court on the petition of the

Western Addition Community Organization (herein-

after referred to as the Petitioner”) to review an

order of the National Labor Relations Board, issued

July 22, 1971, pursuant to Section 10(c) of the Na-

tional Labor Relations Act, as amended (61 Stat. 136,

73 Stat, 519, 29 U.S.C, See. 151, et seq.), dismissing

a complaint issued against The Emporium Capwell

Co. (hereinafter referred to as the ‘‘Company”).

The Board’s Decision and Order is reported at 192

NLRB No. 19. This Court has jurisdiction under See-

tion 10(f) of the Act.

Tom Hawkins and James Joseph Hollins were em-

ployees of the company from June 1966, and Novem-

ber 1967, respectively, until their discharge on No-

vember 11, 1968, The Company is engaged in the

operation of a retail department store at 835 Market

Street, San Francisco, California. At all material

organization to discriminate against any member thereof or

applicant for membership, because he has opposed any prac-

tice made an unlawful employment practice by this subechap-

ter, or because he has made a charge, testified, assisted, or par-

ticipated in any manner in an investigation, proceeding, or

hearing uader this subchapter.

times the Company was a member of a multi-employer

group, the Retailer’s Council, which served as its bar-

gaining agent, and, as such, was signatory to a collee-

tive bargaining agreement with the Department Store

Employees Union (hereinafter the ‘‘Union”) which

was the exclusive representative of the Company’s

employees employed in the stock and marking areas

at the store. The applicable collective bargaining

agreement provided, inter alia:

Section 21(E), ‘‘No person shall be disecrimi-

nated against in regard to hire, tenure of em-

ployment or job status by reason of race, color,

creed, national origin, age or sex.

* + *

Section 5(B), ‘‘Any act of any employer,

representative of the Union, or any employee that

is interfering with the faithful performance of

this agreement . . . may be referred to the Ad-

justment Board for such action as the Adjust-

ment Board deems proper, and permissive within

this agreement.”

‘The agreement also provided that if, after considering

a submitted issue for one week, the Board was unable

to reach a settlement, either party could insist upon

binding arbitration. Also, the agreement contained no-

strike and no-lockout clauses,

In a series of meetings in early April 1963, a group

of Company employees, including Hawkins and Hol-

lins, submitted to Union representatives a list of griev-

ances in which the employees contended that the Com-

pany was discriminating against racial minorities.

Claiming that racial bias had caused minority em-

ployees to be denied promotions, the employees spe-

cifically charged that employee Russel Young had

been denied advancement solely because he is black.

Following these meetings, Union Seeretary-Treasurer

Walter Johnson designated a union committee to in-

vestigate the allegations, and later that month pre-

pared a detailed report outlining the employees’ con-

tentions which stated, inter alia:

Probably, the most important matter raised was

the possibility of racial discrimination. This is

outlawed under the terms of the agreement and

certainly again in this day and age should not be

a problem. [t was the general feeling of almost

all present that discrimination is directed against

the Negro employees and the more senior em-

ployees, senior, that is, in the point of age.

Shortly thereafter, Johnson presented his report to

the Retailers Council, where it was agreed that the

grievances should be taken directly to the Company.

Accordingly, in mid-April, Johnson met with Com-

pany labor relations manager Paul Ehrenfried and

it was agreed that the Company ‘would look into”

the situation and ‘‘see what they could do.”

In May, a group of ten employees requested an

additional meeting with Johnson. The problem of

racial discrimination in general and the Russel Young

case in particular were again discussed; however,

since Young was about to begin his summer vacation,

it was agreed that further investigation of the matter

should await his return. On about September 3, John-

son again met with the employees, including Hawkins

and Hollins, and with representatives of the Fair

Employment Practices Committee (** FEPC”) and the

local Economie Opportunity Couneil (**EOC”), and

announced that the Union had considered the prob-

lem and had concluded that the Company had been

acting discriminatorily, and that, in accordance with

its contract with the Retailers Council, the Union

would demand an Adjustment Board proceeding and

would insist upon arbitration if necessary. While ac-

knowledging that arbitration was a time-consuming

procedure, Johnson pointed out that the arbitration

award, once achieved, would produce a “long lasting

effect” which would benefit not only the employees

having immediate interest in the problem, but ‘‘other

people involved in it” as well. As he explained at

the hearing:

[W]e wanted to process these grievances and

we felt that there were problems of diserimina-

tion and it was my own personal feeling that all

the discriminatory acts should be processed and

that we ought to follow through and take care of

it.

* * *

[I]t was my feeling certain acts had to take

place in order that everybody at the Emporium

would have an opportunity not only to have a

job, but to advance into new positions.

I specifically requested and pointed out that it

is going to take a long time in some of these

eases, but that they would not only be helping

themselves, but other people involved in it, be-

cause we had very strong feelings on the ques-

tion.

* * *

I came to the conclusion after the meeting we

had in April that there was a serious situation

that developed and it had to be taken care of.

However, the program outlined by Johnson did not

satisfy all of the employees; thus, some of those

present expressed ‘‘ frustration” with the situation and

proposed that the Union picket the Company’s store.

Johnson rejected the idea and in an exchange with

Hollins explained that the Union was bound to seek

satisfaction of grievances according to the terms of its

contract and thus could not engage in ‘‘dramatic”

protests such as boycotts. Johnson further stated that

while individual employees ‘‘could take whatever ac-

tion they wanted so long as it was legal,” it was the

Union’s advice that they follow an ‘orderly legal pro-

cedure.” The EOC and FEPC representatives sup-

ported Johnson’s position,

The next day, Johnson wrote Vincent Brown, gen-

eral manager of the Retailer’s Council, requesting a

meeting of the Adjustment Board to resolve the griev-

ances discussed at the previous day’s meeting, assert-

ing, tnter alia:

We specifically charge the Emporium with vio-

lations of Section 5(B) and 21(E) of the Agree-

ment between the San Francisco Retailers Coun-

cil and [the Union]. We have approximately 120

pages of testimony, recorded by a court reporter

to substantiate our position,

We are ready to proceed to immediate arbitra-

tion if the Emporium is ready.

* * &

In response to this letter, a meeting of the Adjust-

ment Board was convened on October 16. Accordingly,

the Union in consultation with counsel prepared its

position for presentation to the Board.

As the meeting began, Union Agent Williams at-

tempted to present evidence of the Company’s prac-

tices by questioning employees regarding their indi-

vidual grievances. However, he was interrupted by

Hollins who, acting as spokesman for himself and

employees Hawkins, Epps and Washington, read a

prepared statement objecting to the prosecution of

grievances on an individual rather than a group basis

and stating that these four employees would not

‘“‘speak as individuals,” but would act only ‘fas a

group.” Further, Hollins stated that the group

‘‘wanted to talk to the President of the Emporium

and wouldn’t talk to anybody else,” since their ‘*main

purpose was to talk to the President to try to reach

an agreement with him to straighten out the problems

and conditions of the Emporium.” Then, after refus-

ing to give any testimony regarding individual em-

ployees’ complaints, Hollins, Hawkins, Epps, and

Washington walked out of the meeting.

A second meeting of the Adjustment Board was

held on October 18, but none of the group of four

attended. The record is unclear as to what transpired

at the meeting; however, Hawkins did acknowledge in

his testimony at the hearing in this case that through

the Union’s intervention, Russel Young was promoted

to the position of First Assistant Manager, and Fata,

another employee, was also promoted to a supervisory

position,

Thereafter, in accordance with the group’s stated

intentions, Hollins went to Company President Batch-

elder insisting that they ‘‘talk about a situation that

[Hollins] felt should be discussed about things that

were happening among minority employees at the

store.” Batchelder would not speak with Hollins but

suggested that Hollins discuss the situation with Hen-

derson, the Company’s personnel director. Hollins re-

fused.

On October 22, Hawkins and Hollins, together with

several other employees, called a press conference at

the Sun-Reporter Building in San Francisco which

was attended by representatives of the press, radio,

and television. The employees stated that the Em-

porium was engaging in racist conduct by discriminat-

ing against racial minorities and that the employees

were planning to picket the store. Hollins also read

the contents of a handbill which the group intended

to distribute to the public (see below) and stated

that their objective was ‘‘to try to talk to the top

management to get better conditions for the Em-

porium.”

Then, on the following Saturday, November 2, em-

ployees Hollins, Hawkins, Epps and Washington

picketed the store from 9:30 a.m. to 6 p.m., distribut-

iag the following handbill to people entering or leav-

ing the store:

BEWARE EMPORIUM SHOPPERS

BOYCOTT ISON ! 1!

For years at the Emporium black, brown,

vellow, and red people, have worked at the lowest

jobs, at the lowest levels. Time and again we have

seen intelligent hard working brothers and sisters

denied promotions and basic respect.

The Emporium is a 20th century colonial

plantation. The brothers and sisters are being

treated the same way as our brothers are being

treated in the slave mines of South Africa.

Whenever the racist pig at the Emporium in-

jures or harms a black sister or brother, they

injure and insult all black people. The Em-

porium must pay for these insults. Therefore, we

encourage all of our people to take their money

out of this racist store, until black people have

full employment and are promoted justly

throughout the Emporium.

We welcome the support of our brothers and

sisters from the churches, union, so? orities, fra-

ternities, social clubs, Afro-American Institute,

Black Panther Party, W.A.C.O. and the Poor

People’s Institute.

While the picketing was in progress, Johns: ‘old

Hollins that he did not want to see him fired and

that the only way to resolve the matter was through

arbitration. Hollins ignored Johnson’s suggestion and

again stated that “the only one they wanted to talk

to was Mr. Batchelder.”

On November 7, Hollins and Hawkins were called

to the office of Paul Ehrenfried, manager of labor

relations, and given a formal written warning which

stated as follows with respect to the press conference

of October 22 and the handbill of November 2:

These statements are untrue and are intended

to and will if continued injure the reputation of

the Emporium,

There are ample legal remedies to correct any

(discrimination you may claim to exist. Therefore,

we view your activities as a deliberate and un-

justified attempt to injure your employer.

This is to inform you that vou may be dis-

charged if you repeat any of the above acts or

make any similar public statements.

Nevertheless, on the following Saturday, November

9, Hollins and Hawkins again picketed the Em-

porium and distributed leaflets substantially identical

with those distributed the previous week.

Accordingly, on Monday, November 11, Hollins and

Ilawkins were called to Ehrenfried’s office and were

discharged. Each was given a discharge slip which

bore the notation:

You are being discharged today. Distribution

of “Boyeott Emporium” literature on Saturday,

November 9, 1968, in front of the Emporium,

855 Market Street, S.F., pursuant to written

warning dated 11/7/68 for similar action on

11/2/68.

The Union subsequently filed a protest with the

Retailer’s Council on the discharge of Hawkins and

Hollins.

November 19, 1968 Western Addition Community

Organization, acting for Hawkins and Hollins, filed

with the NLRB a charge that Emporium had violated

the NLR Act by discharging them for engaging in

statutorily-protected concerted activities, and that

those discharges constituted unfair labor practices

within the meaning of Section 8 (a) (1) of the Act. The

NLRB issued a complaint. After hearing before an

NLRB Trial Examiner, he recommended dismissal of

the complaint. On review, the Board dismissed the

complaint, solely on the ground that the activities of

Hollins and Hawkins were not protected because they

were in derogation of the right of exclusivity of repre-

sentation conferred upon the union by Sections 8 and

9 of the Act. That dismissal is the subject of the

petition filed in this court by Western Addition Com-

munity Organization.

Essentially the question here preserved is whether

after the employees in a collective bargaining unit

have selected a representative in accordance with ‘9

of the NLR Act those in a minority are free to

bargain with their employer concerning class condi-

tions of alleged racial discrimination within that unit.

As the ensuing discussion indicates, attempts to avoid

the direct thrust of that issue seem to be, in at least

this case, exercises in futility or postponement. The

essential question cannot be properly evaded or

escaped by pretending that here we are dealing with

individual grievances of single emplovees rather than

working conditions of a group of emplovees, or that

here we have a minority of employees who are not

acting in derogation of the authority of their union

representative. What this case requires this eourt to

face is whether, in the light of the special aspects of

the problem of potential racial discrimination, to

which both the generalities of the United States

Constitution and the specifics of such Civil Rights

Acts as Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000(e) et seq. are addressed, there is

created an exception to the usual rule of exclusivity

of bargaining rights conferred by the NLR Act upon

a union selected by a majority of employees in an

appropriate unit. This initially presents a matter of

statutory construction of the NLR Act, although, if

that is not resolved favorably to the petitioner, there

lurks in the background a possible question as to

whether insofar as it purports to give the representa-

tive selected by a majority a power to stand athwart

a minority’s claim to the right to seek racial non-

discriminatory conditions, the NLR Act violates the

Fifth, Thirteenth, and Fifteenth Amendments to the

United States Constitution, inasmuch as then the Act

might be regarded as perpetuaring (sic) the eonse-

quences of slavery, buttressing racial discrimination,

and denying due process of law.

In the ease at bar the facts as viewed by the NLRB

make it plain that Hollins and Hawkins sought to

present to the management of Emporium not their

personal grievances, such as their individual failure

to be accorded their due under the collective bargain-

ing agreement, or such as the adjustment of some

wholly individual complaint. What those two men

wanted was a change in management’s policies in

promoting, hiring, and otherwise treating that class

of workers within the unit who were not white in

eolor. Cf. NLRB v. Tanner Motor Livery, Ltd., 9th

Cir., 1969, 419 F. 216, 218; Brown v. Sterling Alumi-

num Products Corp., 8th Cir., 1966, 365 F. 2d 651,

657. There could not be a plainer instance of an

attempt to bargain respecting working conditions, as

distinguished from an adjustment of grievances.

Nor can it validly be claimed that on this record

Hollins and Hawkins were not acting in derogation

of the union representative selected by a majority,

but rather were acting to supplement, support, and

make more explicit the application of the bargaining

contract theretofore negotiated by that union repre-

sentative. To be sure, the contract, theretofore

negotiated, provided that the employer should not

discriminate racially. However, fairly construed, that

glittering generality was, according to the contract,

to be vindicated, if necessary, by a procedure of

specifie complaints made by the union representative

and by him presented through the grievance and

arbitral machinery. This the union clearly saw, and

its officials were themselves quite unwilling to press

for any broad assault on the employer to concede on

some group basis that it should adopt a different

poliey of promoting or hiring colored persons, While

there is a shade of ambiguity as to the union’s attitude

toward having such an assault made by Hollins and

Hawkins, the union neither weleomed nor encouraged

the steps Hollins and Hawkins took to get the

employer to change its policies, Tt may be that the

record does not show that the union interposed a firm

veto. Yet we are not so unsophisticated as not to

appreciate why this evidence is not and probably

never would be available. We recognize that the

union could have reasons which it might not choose

to proclaim from the housetops why it did not want

anything approaching what it might regard as a policy

of employment based on affirmative measures to

achieve racial balance. Whether Hollins and Hawkins

had as ultimate goals affirmative quotas for blacks,

or some method of achieving in the Emporium store

a racial balance corresponding to the racial balance

provided by judicial decrees as a remedy in certain

public employment and in certain school cases, it is

no secret that what was here sought would be in

derogation of the union in at least two ways. In the

most obvious way it would represent a political vie-

tory for Hollins and Hawkins which would certainly

not add to, and almost surely would detract from, the

political appeal of the present union officers at the

next election of representatives by the employees in

the relevant unit; and which, long before the election,

would detract from the union’s glamor. More im-

portant, if Hollins and Hawkins succeed in their

efforts to have the employer change its policies some

whites now employed and others who might be

employed will be potential losers. If a black man is

promoted or hired, it is inevitable that a white will

not be promoted or hired for the same job. Thus

Hollins and Hawkins are acting in derogation of the

union, its contract, and many of its members.

Yet this case is not to be disposed of inerely by

uncovering its bare bones and ripping off the veils

in which it has been wrapped that is, the pretense

that this is not an effort to change working conditions

in the unit, ar 1 the further pretense that this effort

is not in derogation of the representative selected by

a majority in accordance with Section 9 of the NLR

Act. We must recognize that this is not, except most

superficially, analogous to a case wherein a minority

within an appropriate unit seeks, without the consent

of the representative selected by a majority, to get

different wages, (See Archibald Cox, The Right To

Engage In Concerted Activities, (1951) 26 Indiana

Law Journal 320), or seeks to reach agreement more

quickly than the representative has done, (Cf. NLRB

v. Draper Corp., 4th Cir., 1944, 145 F. 2d 199, 156

A. L. R. 989: NLRB v. Sunset Minerals, Inc., 9th

Cir., 1954, 211 F. 2d 324,) or seeks the same results

with the acquiesence (sic), expressed or implied, of the

representative selected by the majority, (Cf. NLRB

v. R. C. Can Co., 5th Cir., 1964, 32 F. 2d 974-978-979),

or, let us say, purely hypothetically, seeks to get

better working conditions for members of a fraternal

organization, or quicker promotion for workers who

have been graduated from institutions of advanced

education, or even claims that skilled workers in the

union ought to be differently treated from unskilled

workers. See William B. Gould; The Status of Un-

authorized And ‘Wildcat’ Strikes Under The National

Labor Relations Act (1967) 52 Cornell L. Q. 672, 686.

What this case involves is a racial issue. Racial

issues in our society are, because of the United States

Constitution, because of the history, traditions and

aspirations of our people, and because of the legisla-

tion of Congress, most particularly Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.,

in quite a different category from other issues pre-

sented by a minority in a unit which has selected a

representative in accordance with §9 of the Act.

A first, and by no means trivial, reason why the

employer, the union, the NLR Board, and we are

required to treat differently a complaint as to a work-

ing condition with racial character is that, as shown

by Title VII of the Civil Rights Act of 1964, 42 U.S.

C. § 2000(e) et seq., and by cases such as Griggs v.

Duke Power Co, 1971, 401 U.S. 424, it is part of our

national policy, declared in Acts of Congress, not

merely that an employer shall avoid the prejudice

inherent in discriminating negatively by refusing to

hire or promote black persons, but that an employer

shall take affirmative steps to assure that black persons

have equality of opportunity for employment and

promotions. See Castro v. Beecher, D. Mass. 1971, 334

F.Supp. 930, aff'd. with modifications by 1st Cir.,

1972, 459 F. 2d 725, and particularly the opinions of

the District Court on remand, April 15, 1973. The

NLR Act contemplates that the NLRB and all others

concerned with the Act shall enforce that policy

together with the policy of non-diserimination against

employees on account of their legitimate union activi-

ties. This is the fair implication of Southern Steam-

ship Co. v. NLRB, 1942, 316 U.S. 311.

There is a second and more subtle reason whv a

racial complaint must be looked upon differently from

the run-of-the-mill complaints made by minorities

as to everything from wages to drinking fountains.

When the minority consists of non-whites who seek

for themselves what they regard as equality of op-

portunity, it is to be expected that their position is,

if not hostile to, or at least uncongenial to, certainly

not fully shared by, a majority of whites in the same

unit. Even if we assume that the whites are tolerant

nay generous, their short-term interest is in conflict

with the short-term interest of the non-whites.

Nothing—except perhaps a philosophy founded upon

long-term interests—can eliminate that basic conflict.

Hence it is essentially a denial of justice to allow the

white majority to have the power to preclude the

non-whites from dealing directly with the employer

on racial issues, whether or not this is in disparage-

ment of the rights of the union representative, See

John Rawls, A Theory of Justice, Harvard University

Press (1971) pp. 228-234; Sir Isaiah Berlin, Two

Concepts of Liberty, Oxford University Clerendon

Press (1958), pp. 9-14, 48-57.

This inevitable conflict makes it necessary either to

construe legislation so as to avoid an obvious in-

justice, or, in the last resort, if such construction is

not permissible, to face up to the ultimate Constitu-

tional question in the spirit so perceptively adum-

brated in the now classic fourth footnote in U7. S. v.

Carolene Products Co., 1938, 304 U.S. 144, 152-155.

Fortunately, here there is no insuperable difficulty

in construing the NLR Act to permit a minority,

(despite the previous selection by a majority of a ,

representative of the unit in which the minority is

employed, and despite a collective bargain executed

by that representative and the employer) to bargain

directly with the employer in regard to racial issues

which affect that minority in a way different from the

way they affect the majority. A meticulous reading

of the history of the NLR Act makes this point

evident. When, as Solicitor General, the Honorable

Stanley Reed argued before the Supreme Court that

the NLR Act was constitutional, he sought to explain

the object of giving exclusivity to the representative.

See 75th Cong., Ist Sess., Senate Document No. 52,

Arguments In The Cases Arising Under The Railway

Labor Act And The National Labor Relations Act

Before The Supreme Court of The United States,

February 8-11, 1937, pp. 37-38. He had made the same

point, somewhat more precisely, earlier in the week

in footnote 35a in the brief he had filed in The

Virginian Railway Co. v. System Federation No. 40,

1937, 300 U.S. 515, 536-537, a companion ease in-

volving the cognate Railway Labor Act. What Mr.

Reed’s brief said, Mr, Justice Stone’s opinion in The

Virginian Railway case, just cited, incorporated with

great specificity into the Railway Labor Act. See 300

U.S. 548, footnote 6, and Mr. Chief Justice Hughes’

opinion in National Labor Relations Board v. Jones

& Laughlin Co., 1937, 301 U.S. 1, 44 incorporated

with somewhat more generality into the National

Labor Relations Act.

What is undeniable (as the discerning opinion of

Cireuit Judge John R. Brown in NLRB v. R. C. Can

Co., 1964, 328 F. 2d, 974, 979, joined in by Circuit

Judge Elmer Tuttle, emphasizes, and as Vaca v.

Sipes, 1967, 386 U.S. 171 and Note Individual Con-

trol Over Personal Grievances under Vaca v. Stipes,

77 Yale L. J. 559 (1968) seem to recognize) is that

the draftsmen of the NLR Act, those who championed

it in argument before the Supreme Court, and that

court itself had their focus on the chaos that would

occur, the breakdown of the union’s authority, the

unfortunate predicament of an harassed employer,

and the likely breach of industrial peace which would

oceur if every dissident group of workers in an ap-

propriate unit was free to negotiate all the terms of

its own working conditions with the employer. How-

ever, one associated with the original Wagner Act

eases or the legislative debates preceeding the adoption

of the NLR Act had his attention called to a racial

or kindred term of employment where it was im-

evitable that the interests of the representative and

of the majority would be adverse to a statutorily-, not

to say, constitutionally-, protected claim of a minority

or dissident grovp or individual. See Donnelly v.

United Fruit Co., N. J. 1963, 190 A. 2d 835; Hain,

Black Workers Versus White Unions etc., 16 Wayne

L. Rev. 37 (1969).

Verbally, and from one set of premises one may

say “logically” as well, the reasoning which precludes

a minority from bargaining about wages or normal

working conditions also precludes the minority from

bargaining about racial discrimination. But that

argument proceeds from an implied premise that

Congress when it used the all-inclusive language of

exclusivity set forth in Sections 8 and 9 of the NLR

Act really meant to be all-inclusive. The plain fact of

the matter is that there is not a shred of evidence to

show that the draftsmen of the Act, its sponsors, the

legislators who enacted it, the President who signed

it, the lawyers who argued for it, or the Justices who

sustained it ever contemplated the issue presented in

the case at bar: whether the NLR Act gives to a

white majority the power to foreclose a non-white

minority from presenting to their employer those

special issues which arise with respect to the employ-

ment of non-whites. It cannot fairly be supposed that

by implication, or by the use of general language of

an admittedly comprehensive nature, Congress in-

tended to deny the non-whites what thoughtful

persons must concede is elementary justice.

To leave non-whites at the merey of whites in the

presentation of non-white claims which are admittedly

adverse to the whites would be a mockery of

democracy. Suppression, intentional or otherwise, of

the presentation of non-white claims cannot be

tolerated in our society even if, which is probably at

least the short-term consequence, the result is that

industrial peace is temporarily adversely affected.

In presenting non-white issues non-whites cannot,

against their will, be relegated to white spokesmen,

mimicking black men. The day of the minstrel show

is over.

Inasmuch as the NLR Act lends itself te a eon-

struction which avoids the denial of elementary

justice it is unnecessary for this court to consider

whether if the statute did deny the non-white minority

the right to present issues which have a non-white

hue, the NLR Act as applied to the minority would

be repugnant to the Fifth, Thirteenth, or Fifteenth

Amendments to the United States Constitution.

Some miscellaneous points should be answered be-

fore concluding.

There is, of course, no question that the issues

tendered by Hawkins and Hollins related to “working

conditions” as that term is used in Sections 7, 8, 9,

and other parts of the NLR Act.

Therefore, unless the “exclusivity” doctrine stood

in the way, Hawkins and Hollins had a statutorily-

protected right to picket in order to present their

claim with respect to alleged discrimination against

non-whites. This was indeed specifically recognized by

the Court of Appeals for the Ninth Circuit in the

first stage of NLRB v. Tanner Motor LTD., 9th Cir.,

1965, 349 F.2d 1, although, of course, in the second

stage of the same case, NLRB v. Tanner Motor LTD,

9th Cir., 1969, 419 F.2d 216, the Ninth Circuit has

reached a conclusion diametrically opposed to the one

set forth in this opinion.

In this case there is not properly before us as a

Court of Appeals any question as to whether the lan-

guage, signs, and like utterances by Hawkins, Hollins,

and their associates were such as to deprive them of

a statutory privilege against discriminatory action by

their employer. The NLRB itself, (though not its trial

examiner) refrained from any comment on _ those

utterances, The Board, in short, did not refuse to

issue a complaint against Emporium on any ground

related to the utterances of Hawkins and Hollins. We

are, therefore, not called upon to decide whether we

think such utterances fall within the doctrines of

NLRB v. Local Union No. 1229, 1953, 346 U.S. 464,

472 and Patterson Sargent Co., 1956, 115 NLRB 1627,

38 LRRM 1134,

Certainly the Board was warranted in not placing

petitioner beyond the pale of legal relief merely

because the vulgar language and the want of “com-

pany loyalty” of Hawks and Hollins, and their dis-

regard of the truth were offensive. See Dobbs Houses

v. NERB, 4th Cir., 1963, 325 F.2d 531, and Crown

Central Petroleum Corp. v. NLRB, 5th Cir., 1970, 430

F.2d 724, 731.

For judges to make a ruling upon the effect of lan-

guage and conduct which in its opinion the NLRB

did not characterize and rule be either permissible

or impermissible would be to arrogate unto ourselves

a preliminary fact-finding and law-determining fune-

tion which Congress has entrusted to the Board and

not to our non-expert hands, Nothing said herein,

however, is to be construed as indicating approval of

the vulgarities and exaggeration in the utterance of

Hawkins, Hollins and their fellows are. To be sure,

those who use such Billingsgate are not on that

account to he denied legal relief. Nonetheless, it is

fitting for the court to remind those represented by

petitioner that their interests, as well as the interests

of the employer and, more important, of democratic

society favor rational discussion, and not abvsive

intemperate name-calling. Those who seek an under-

standing tolerance would do well to practice it.

In my view, the NLRB’s order should be set aside,

and the Board be directed to take further proceedings

in conformity with this opinion. I see nothing to be

gained by a broad as distinguished from a narrow,

directory remand unequivocally commanding the

NLRB to grant the relief sought by the complaint.

I see no possible way of avoiding the head-on chal-

lenge to the exclusivity principle which is involved

in the uncontrovertible facts. Justice delayed is jus-

tice denied.

United States of America

Before the National Labor Relations Board

Case 20—CA—5304

The Emporium

and

Western Addition Community i

Organization — :

[Filed July 23. 1971]

DECISION AND ORDER

On October 20, 1969, Trial Examiner William F.

Spencer issued his Decision in the above-entitled pro-

ceeding, finding that Respondent had not engaged in

the unfair labor practices alleged in the complaint

and recommending that the complaint be dismissed

in its entirety. Thereafter, the General Counsel and

the Charging Party filed exceptions te the Trial

Examiner’s Decision together with supporting briefs,

and Respondent filed cross-exceptions to the Trial

Examiner’s Decision and in opposition to the Gen-

eral Counsel’s exceptions together with a supporting

brief."

‘Amici curiae briefs were filed by the Department Store Employ-

ees Union Local 1100, Retail Clerks International Association, AF L-

CIO, the National Association for the Advancement of Colored

People, and the Equal Employment Opportunity Commission. Re-

spondent also filed a brief in reply to the amici briefs.

On December 14, 1970, the National Labor Rela-

tions Board having determined that the instant case

raised issues of substantial importance in the admin-

istration of the National Labor Relations Act, as

amended, notified the parties that oral argument on

the case would be heard by the Board on January 4,

1971. All parties participated in the oral argument

which was subsequently held on the aforesaid date.

The Board has reviewed the rulings of the Trial

Examiner made at the hearing and finds that no

prejudicial error was committed. The rulings are

hereby affirmed. The Board has considered the Trial

Examiner’s Decision, the exceptions and briefs, the

oral argument, and the entire record in the case, and

hereby adopts the findings, conclusions,’ and recom-

mendations of the Trial Examiner.

2Unlike our dissenting colleague, Member Jenkins, we conclude

that the record before us neither requires nor allows findings as to

two matters which were not alleged or litigated but which, never-

theless, are assumed as facts and supply the foundation of his dis-

sent, specifically: (1) that Respondent was engaged in a pattern

or practice of racial discrimination, and (2) that the Union’s efforts

to remedy that supposed discrimination were so limited that the

Union breached its duty of fair representation, and should forfeit

its status as the exclusive representative of employees in the bar-

gaining unit. Furthermore, since those issues were not litigated,

any factual findings with respect to them could not properly be

made upon this record. Thus the sole issue presented for decision

on this record is whether the conduct of the discharged employees

was unprotected because in derogation of the duly designated ex-

elusive bargaining representative. For the reasons stated by the

Trial Examiner, we agree that the actions of the discharged em-

ployees in abandoning the contractual grievance procedure and

seeking to initiate direct negotiations with Respondent by picketing

and boycott activities were not protected by the Act.

ORDER

Pursuant to Section 10(¢) of the National Labor

Relations Act, as amended, the Nationa! Labor Rela-

tions Board adopts as its Order the recommended

Order of the Trial Examiner and hereby orders that

the complaint be, and it hereby is, dismissed in its

entirety.

Dated, Washington, D.C., July 22, 1971.

Edward B. Miller, Chairman

(Seal) John H. Fanning, Member

Ralph E. Kennedy, Member

National Labor Relations Board

Member JENKINS, dissenting:

Respondent, The Emporium, operates a department

store in the San Franciseo area. It has a collective-

hargaining agreement with the Union, containing a

clause prohibiting racial discrimination. Respondent

discharged two Black employees for orderly picket-

ing and leafletting of Respondent’s store in protest

of alleged racial discrimination respecting promo-

tions and other terms and conditions of employment.

Over 6 months before the picketing and leafletting

began, the Union had alleged The Emporium had

violated the nondiscrimination clause, and had sought

to pursue individual eases of alleged discrimination

through the grievance and arbitration procedure estab-

lished by the collective-bargaining agreement. Some

employees, including those discharged, considered that

the alleged discrimination problem affected all black,

brown, yellow, and red employees. They objected to

the Union’s limiting grievances to individual cases as

being too slow, narrow, and ineffective as a remedy,

and asked the Union to seek grievance adjustment,

and arbitration if necessary, of the broad question of

all phases of discriminatory treatment of all Black

and other minority employees. The Union declined,

and the picketing and leafletting resu!ted.

The question thus presented is whether concerted

activity by employees protesting the existence of all

forms of alleged racial discrimination loses its pro-

tection under the Act because the Union representing

the employees has taken a position in support of elim-

inating some, but not all, phases of the alleged dis-

crimination.

The Trial Examiner found that the picketing anda

leafletting lost its protection, primarily for two rea-

sons: (1) The Union is the exclusive representative

of the employees under the Act; the Act entitles the

Employer to deal only with the Union rather than

bargain on two fronts; thus the picketing and leaf-

8It will be noted, contrary to the statement in fn. 2 of the ma-

jority opinion, that I have set forth the facts as involving “alleged”

discrimination, and have refrained from any indication of the merit

(or lack of it) in the protesting employees’ assertions that Respond-

ent engaged in racial discrimination. If the employees were of the

opinion that such diserimination existed, and protested, this suffices

(in the absence of additional factors such as those subsequently

considered in the text) to make their activities concerted and con-

cerned with terms and conditions of their employment, and thus

brings such activities within the protection of Section 7. It is on

this principle, and on these facts, that my subsequent analysis and

discussion is based—as I had thought was clear. While it would

make no difference in my conclusions whether the Union agreed or

disagreed with the protesters, I note further that the Union also

was of the opinion that Respondent practiced racial discrimination.

letting undermined the Union’s exclusive representa-

tion of the employees; and (2) the Union had made

substantial and good-faith efforts to achieve an

orderly solution to the problem within the collective-

bargaining processes.*

Neither of these reasons withstands scrutiny.

The union’s right to be the exclusive representative

of the employees originates in the principle of collee-

tive bargaining established by the Act. This principle

requires that the representative of the employees pre-

sent a single set of demands or goals covering all em-

ployees, and that whatever bargain is struck with the

representative by the employer be applicable to all

employees, so that the employer need bargain neither

with splinter groups of employees nor with individual

employees, and may not undermine the union by doing

so. This in turn implies that the union must have the

‘The third ground relied on by the Trial Examiner, that the dis-

charged employees were only “self-styled” representatives of others,

does not warrant further consideration here, for it is plain the

activity was concerted and related to conditions of employment.

I do not suppose my colleagues to rely on this ground. The Trial

Examiner’s inference that the protesting employees, by seeking a

meeting with the Employer's president, were thereby seeking to

“bargain” for all minority employees apart from the Union appears

unfounded. Their desire to talk to Respondent’s president, far

from evincing a desire to “bargain,” merely reflected a traditional

opinion shared by Blacks and often enforeed by actual experience

that only th» president or “boss” of the company ean effect perma-

nent solutions to problems involving racial discrimination. Apart

from this consideration, there is no rule of law which requires an

employee to adjust his grievance with a lower ranking offieial or

which transforms a grievance when presented to the president of a

company into collective bargaining. Nor is there any reason why

a grievance may not pertain to a group rather than an individual

complaint and accordingly be resolved on a group rather than an

individual basis.

power to balance and adjust the legitimate competing

claims within the employee groups, and that whatever

adjustment is arrived at fairly by the union and its

membership forecloses individual or splinter-group

assertion of conflicting positions. It was these consid-

erations of balances, adjustment, and exclusive repre-

sentation which the Trial Examiner applied to find

that the leafletting and picketing here were unpro-

tected.

This application rests upon a serious misconception.

Union action preempts or forecloses individual em-

ployee action only in those cases where the balancing

of competing legitimate interests of employees 1s

involved. In the ease of racial discrimination, no such

balancing is permitted. A union cannot permit a little,

or a lot, of racial discrimination against one group

in order to obtain something in a different area from

the employer, for a different group of employees.

Such “balancing” has been unlawful since Steele v.

Louisville & Nashville Railroad Co., 323 U.S. 192.

In Steele the Supreme Court held that a collective-

bargaining agreement entered into between the em-

ployer and the union was unlawful to the extent it

discriminated against Black employees on racial

grounds. The Court reasoned as follows:

If as the state court has held, the Act confers

this power [of exclusive representation free from

any challenge by those represented] on the bar-

gaining representative of a craft or class of em-

ployees without any commensurate statutory duty

toward its members, constitutional questions

arise. For the representative is clothed with

power not unlike that of a legislature which is

subject to constitutional limitations on its power

to deny, restrict, destroy or discriminate against

the rights of those for whom it legislates and

which is also under an affirmative constitutional

duty equally to protect those rights. Tf the Rail-

way Labor Act purports to impose on petitioner

and the other Negro members of the craft the

legal duty to comply with the terms of a contract

whereby the representative has discriminatorily

restricted their employment for the benefit and

advantage of the Brotherhood’s own members, we

must decide the constitutional questions which

petitioner raises in his pleading.

But we think that Congress, in enacting the

Railway Labor Act and authorizing a labor union,

chosen by a majority of a craft, to represent the

craft, did not intend to confer plenary power

upon the union to sacrifice, for the benefit of its

members, rights of the minority of the craft,

Without imposing on it any duty to protect the

minority, [323 U.S. at 198-199, emphasis sup-

plied. ]

~ * * * *

We think that the Railway Labor Act imposes

upon the statutory representative of a craft at

least as exacting a duty to protect equally the

interests of the members of the craft as the Con-

stitution imposes upon a legislature to give equal

protection té the interests of those for whom it

legislates, Congress has seen fit to clothe the bar-

gaining representative with powers comparable

to those possessed by a legislative body both to

ereate and restrict the rights of those whom it

represents, cf. J. I. Case Co. v. N.L.R.B., supra,

335, but it has also imposed on the representative

a corresponding duty. We hold that the language

of the Act to which we have referred, read in the

light of the purposes of the Act, expresses the

aim of Congress to impose on the bargaining

representative of a craft or class of employees

the duty to exercise fairly the power conferred

upon it in behalf of all those for whom it acts,

without hostile discrimination against them.

This does not mean that the statutory repre-

sentative of a craft is barred from making con-

tracts which may have unfavorable effects on

some of the members of the craft represented.

Variations in the terms of the contract based on

differences relevant to the authorized purposes

of the contract in conditions to which they are to

be applied, such as differences in seniority, the

type of work performed, the competence and skill

with which it is performed, are within the scope

of the bargaining representation of a craft, all of

whose members are not identical in their interest

or merit. [Citations omitted. | Without attempt-

ing to mark the allowable limits of differences

in the terms of contracts based on differences of

conditions to which they apply, it is enough for

present purposes to say that the statutory power

to represent a craft end to make contracts as to

wages, hours and working conditions does not

include the authority to make among members of

the craft discriminations not based on such rele-

vant differences. Here the discriminations based

on race alone are obviously irrelevant and invid-

ious. Congress plainly did not undertake to au-

thorize the bargaining representative to make

such discriminations. [Citations omitted. ]

The representative which thus discriminates

may be enjoined from so doing, and its members

may be enjoined from taking the benefit of such

discriminatory action. No more is the Railroad

bound by or entitled to take the benefit of a con-

tract which the bargaining representative is pro-

hibited by the statute from making. In both cases

the right asserted, which is derived from the duty

imposed by the statute on the bargaining repre-

sentative, is a federal right implied from the

statute and the policy which it has adopted. It is

the federal statute which condemns as unlawful

the Brotherhood’s conduct, [323 U.S. at 202-204,

emphasis supplied. ]

These principles, though first enunciated in Rail-

way Labor Act cases, are equally applicable under the

National Labor Relations Act. Ford Motor Company

v. Huffman, 345 U.S. 330. In so holding, the Supreme

Court stated:

The National Labor Relations Act, as passed in

1935 and as amended in 1947, exemplifies the

faith of Congress in free collective bargaining

between employers and their employees when con-

ducted by freely and fairiy chosen representa-

tives of appropriate units of employees. That the

authority of bargaining representatives, however,

is not absolute is recognized in Steele v. Lowis-

ville & N. R. Co., 323 U.S. 192, 198-199, in con-

nection with comparable provisions of the Rail-

way Labor Act. Their statutory obligation to

represent all members of an oppropriate unit

requires them to make an honest effort to serve

the interests of all of those members, without

hostility to any. [d., at 198, 202-204; Tunstall v.

Brotherhood of Locomotive Firemen, 323 U.S.

210, 211; Brotherhood of Railroad Trainmen v.

Howard, 343, U.S. 768. [345 U.S. at 337.]

The principles of Stecle have been uniformly fol-

lowed, refined, and broadly applied in a long line of

cases since then, including Tunstall v. Brotherhood of

Locomotive Firemen, 323 U.S. 210; The Wallace Cor-

poration v. N.L.R.B., 323 U.S, 248, 255-256; Graham

v. Brotherhood of Locomotive Firemen & Enginemen,

338 U.S. 232: Brotherhood of Railroad Trainmen v.

Howard, 343 U.S. 768; through Humphrey v. Moore,

375 U.S. 335, to its latest expression in Vaca v. Sipes,

386 U.S. 171. These eases all make it clear that a

union’s obligation under this Act is to refrain from

actions which permit discrimination on arbitrary or

invidious grounds. This duty to refrain, as explicitly

stated in Steele, includes the duty not to engage in,

permit, or tolerate provisions in bargaining agree-

ments, or practices under or outside such agreements,

which constitute or permit such invidious diserimi-

nation. It follows from this that whenever union con-

duct falls short of this obligation, it cannot preempt

or foreclose the concerted action of employees, out-

side the collective-bargaining relationship, directed

toward doing the very thing which the union itself

is obligated to do. If this were not so, we would

face the grave constitutional questions concerning the

validity of the union’s representation which the Court

noted in Steele.

As this Board pointed out in Tanner Motor Livery,

Ltd., 166 NLRB 551, the union is required, by its

duty of fair representation and by constitutional

considerations, to support the elimination of racial

discrimination ; consequently, the protest of racial dis-

crimination in employement cannot be in opposition

to or at cross-purposes with the union’s position. As

the Board there held:

[T]he Board cannot presume or conclude that,

contrary to the course being urged by Abramson

and Dorbin, the Union knowingly would have

taken the unlawful position that it would refuse

to represent Negro drivers fairly if hired. Rather,

we must assume that these employees were act-

ing in accord with, and in furtherance of, the

lawful position of their collective-bargaining

agent. For the Board to find, therefore, that the

employees’ otherwise protected concerted activi-

ties herein were rendered unprotected by virtue

of an existing collective-bargaining agreement

between the Union and the Respondent would be

offensive to public policy. [166 NLRB at 551-552;

footnotes omitted. ]°

*The Ninth Cireuit, in remanding Tanner, did so on the ground

that the protesting employees had not first sought to pursue their

cause through the union, 41% F.2d 216. In the present case the

employees did request or demand that the Union pursue the broad

overall grievance and it was only after the Union declined to do so

that they began the picketing and leafletting. The court left stand-

ing the Board’s finding that employees who engaged in concerted

protests of an employer’s racially discriminatory practices were en-

titled to the protection of Section 7 of the Act.

In the recent case of Washington State Service Employees State

Council No, 18, 188 NLRB No. 141, this Board held that the pro-

tection accorded to such protests in Tanner Motor extended even to

protests which occurred outside the immediate employer-employee

relationship. As this recent decision clearly demonstrates, the right

to engage in such activities stands on a different footing from the

collective-bargaining relationship.

To hold otherwise would permit a union to control

the scope, direction, pace, and degree of elimination

of racial diserimination, of which any voluntary toler-

ance by the union breaches its duty of fair representa-

tion. The only permissible collective bargaining con-

cerning racial discrimination is its elimination.

No court has permitted the existence of a collective-

bargaining agreement to stay its hand in ordering an

employer to eliminate discrimination. Further, em-

ployers can unilaterally change existing collective-

bargaining agreement provisions which have diserimi-

natory effects and may do so free from the threat of

a strike. See U.S. v. Local 189, Papermakers, 282 F.

Supp. 39, 42-44 (E.D.La., 1968). As to discriminatory

practices which are not derived from or are not inher-

ent in the colleetive-bargaining agreement, employers

are not only free unilaterally to eliminate such dis-

crimination, but are dutybound to do so. They cannot

be heard to protest that their failure to eliminate dis-

criminatory practices or to treat with employees who

concertedly protest such practices is in derogation of

the exclusive representative status of the union. Nor

may they shift their responsibility under the national

labor policy to eliminate all racial discrimination to

the union by making such illegal discrimination a

matter solely within the jurisdiction of a grievanee-

arbitration procedure, thereby placing the burden

largely on the union and providing themselves with

a ready defense to any and all concerted activities by

their employees to directly elimin: > discriminatory

practices. If a union position in favor of the elimi-

nation of some but not all racial discrimination can

foreclose concerted employee activity to remove all

racial discrimination, collective bargaining on this

subject is converted from a shield protecting em-

ployees against racial discrimination into a sword by

which such protection can be cut down or cut back.

As the Court held in Graham v. Brotherhood of

Locomotive Firemen & Enginemen, 338 U.S. 232, 239,

the Railway Labor Act

imposes upon the [union] the duty to represent

all members of the [unit] without discrimination

and mvests a racial minority of the [unit] with

the right to enforce that duty. [Emphasis sup-

plied. ]

Steele, supra, held that the members of the union

“may be enjoined from taking the benefit of [the]

discriminatory action” and the employer is not “en-

titled to take the benefit” of the discriminatory prac-

tices, and Graham, supra, held that the act “invests

a racial minority of the [unit] with the right to

enforce that duty” of fair representation. Thus the

victims of discrimination have a right under the Act

to sue both the employer and their union in order to

end the discrimination. If union inactivity to end

discrimination cannot cause such extreme measures

by the employees to lose them the protection of the

Act, plainly that protection cannot be lost by the em-

ployees’ efforts at persuasion here.

Accordingly, the principle of exclusive representa-

tion by the union cannot preclude the picketing and

leafletting the employees engaged in here, nor deprive

such activity of protection under the Act.

It is the Board’s apparent inability to retain a

grasp on these principles which led the Supreme

Court, in Vaca v. Sipes, 386 U.S. 171, to hold that the

Board does not have preemptive jurisdiction over

breaches of the duty of fair representation and that

the courts retain concurrent jurisdiction over such

violations of this statute. In explaining its reason for

such conclusion, the Court stated that should this

Board be found to have preemptive jurisdiction

the individual employee injured by arbitrary or

discriminatory union conduct could no longer be

assured of impartial review of his complaint,

since the Board’s General Counsel has unreview-

able discretion to refuse to institute an unfair

labor practice complaint [citations omitted]. The

existence of even a small group of cases in which

the Board would be unwilling or unable to

remedy a union’s breach of duty would frustrate

the basic purposes underlying the duty of fair

representation doctrine. For these reasons, we

cannot assume from the NLRB’s tardy assump-

tion of jurisdiction in these cases that Congress,

when it enacted N.L.R.A. § 8(b) in 1947, intended

to oust the courts of their traditional jurisdiction

to curb arbitrary conduct by the individual em-

ployees’ statutory representative. [386 U.S. at

182-183; emphasis supplied. ]

In addition to having made a “tardy assumption” of

its responsibilities in this area in the past, the Board

here, by holding the concerted conduct of the em-

ployees to be unprotected and thus sanctioning their

discharge, places itself in the position of participating

in and aiding and abetting the continuance of those

phases of racial discrimination which the Union

elected not to try to remedy. In Independent Metal

Workers Union, Local No. 1 (Hughes Tool Company),

147 NLRB 1573, the Board stated that it “cannot

validly render aid under Section 9 of the Act” to a

labor organization which discriminates racially. Yet

here, the Board as an organ of the Government, by

withdrawing its protection from these employees who

are protesting racial discrimination, is breaching its

constitutional and statutory obligation not to aid or

permit such discrimination. Brown v. Board of Edu-

cation, 347 U.S. 483; Shelley v. Kraemer, 334 U.S. 1.

The Trial Examiner also relied upon the Union’s

good-faith efforts to achieve an orderly solution to

tle problem within the collective-bargaining relation-

ship as a ground for finding that the concerted ac-

tivity outside union channels was unprotected.

This position misconceives the problem. The ques-

tion is not whether the Union moved as vigorously

or as effectively as it reasonably could have. It may

have done so. The Employer’s economic power and

the desire to retain economic benefits of racial dis-

crimination may impose severe limitations on a

union’s ability to make progress on this front. Indeed,

there is no intimation in this case that the Union had

the ability to do substantially more than it had under-

taken to do, and the Employer’s prompt retaliation by

discharging the picketing and leafletting employees

suggests that perhaps the Union may have been exert-

— NT =

ing the full range of its power and ability to eliminate

racial discrimination.°®

The union’s own judgment of its capabilities with

regard to the pace and scope of eliminating the dis-

crimination may result from its own fair estimate of

the realities’ and in that sense may not be grounded

in bias or hostility. But the absence of subjective bias

or animus is irrelevant to the duty of fair representa-

tion, and it does not follow from the absence of hos-

tility by the union that the employees cannot them-

6The reverse, of course, may also be true, with the union rather

than the employer exercising the greater power and resisting the

elimination of discrimination. The existence of racial diserimina-

tion does not automatically imply that both the union and employer

have committed violations of the Act, though this may be true in

some eases. The issue can be resolved by charging both with vio-

lations, ascertaining through the hearing process which was the

responsible party, and holding it liable for the remedy. The pre-

ceding portion of this footnote and the paragraph in the text to

which this note is appended make it plain, contrary to the state-

ment of the majority in fn. 2, that I make no assumption that the

Union here has breached its duty of fair representation; rather,

the reverse is true. The further statement in fn. 2 that I also

assume or infer that beeause of this breach the Union should forfeit

its status as bargaining representative is gratuitous. I have sug-

gested no such proposal, either explicitly or implicitly.

71t hardly follows from this, of course, that the Trial Examiner

was correct in his conclusion that the Union was in fact “endeavor-

ing in every way available to it under the agreement to adjust any

and all cases of racial discrimination brought to its attention.” The

record shows an unexplained time lag between May and September

when the Union apparently did nothing. At the May meeting, the

disenchanted employees asked for a delay only until the return of

employee Young who was about to go on vacation. In addition,

there is no evidence that the Union actually investigated the merits

of the numerous complaints Johnson received from approximately

40 employees who attended the April 3 meeting. Indeed, there is

evidence in the record that throughout the summer various em-

ployees expressed to Johnson frustration at the delay and implored

him to take action. It is apparent that the delay engendered sus-

picion of the motives of the Union and that the frustrations built

up during the summer months contributed to the diseriminatees’

resort to the activities for which they were discharged.

selves then take action under the protection of the

Act in support of the complete elimination of racial

discrimination. The right to be free from racial dis-

crimination in employment does not arise solely from

this statute creating union representation but, as

Steele held, is in substantial part based upon the Con-

stitution which requires the exclusive representative

under this Act te refrain from tolerating racial dis-

crimination respecting terms and conditions of em-

ployment. In this respect, it is analogous to the em-

plover’s freedom of speech to oppose unions, or the

union’s freedom of speech in handbilling: There are

some respects in which it cannot be circumscribed or

limited by the Act or by this Board. One of these

is the freedom from limiting the protection of the Act

by union preemption through the union’s assertion

of a lesser opposition to racial discrimination than

the protesting employees assert. If the employees can-

not engage in concerted activity to eliminate racial

discrimination entirely after the union has declined

to try to do so, a union interested in retaining dis-

crimination can preempt the field by moving only at

a snail’s pace, or in token areas.

Finally, the doctrine enunciated by the Court in

Steele has been embraced by the Congress in the en-

actment of Title VIT of the Civil Rights Act of 1964,

so that the national labor policy itself specifically

forbids racial discrimination in the terms and econ-

ditions of employment, and its existence is unlawful.’

8Section 704(a), 42 U.S.C. § 2000(¢)—3(a). This act establishes

additional governmental agencies and procedures for carrying out

this policy, but of course does not relieve this Board of its con-

tinuing responsibilities.

The Act we administer must be read consistently with

other Federal statutes which establish the national

labor policy. Tezrtile Workers Union of America,

AFL-C10 v. Lincoln Mills, 353 U.S. 448, 456-458. To

withdraw the protection of this Act from these em-

ployees whose concerted protest was in furtherance

of the national labor policy, merely because their

Union stopped short of assuming its full obligations

under the statute, is contrary to the express purposes

of Congress and to the national policy itself.

Consequently, the employees’ handbilling and leaflet-

ting remained concerted activity and protected under

Section 7 of the Act, and the discharge of the em-

ployees for such activity violated Section 8(a)(1).

Accordingly, I think we are required to reverse the

Trial Examiner and find the discharges to be un-

lawful.

Dated, Washington, D.C.,

July 22, 1971.

Howard Jenkins, Jr., Member

National Labor Relations Board

Member Brown, dissenting:

I agree with Member Jenkins, though not with his

rationale in its entirety, that Respondent violated

Section 8(a)(1) of the Act by discharging two em-

ployees, Hawkins and Hollins, who engaged in orderly

picketing to protest alleged discrimination against

minority group employees with respect to terms and

conditions of employment.

The Respondent, a member of a multiemployer

group, is signatory to a collective-bargaining agree-

ment with Department Store Employees Union. Sec-

tion 21(E) thereof provides:

No person shall be discriminated against in re-

gard to hire, tenure of employment or for status

by reason of race, color, creed, national origin,

age or sex....

and section 5(B) reads:

Any act of any employer, representative of the

Union or any employee that is interfering with

the faithful performance of this agreement—may

be referred to the Adjustment Board for such

action as the Adjustment Board deems proper,

and is permissive within this agreement.

The agreement also provides fer no-strikes or lock-

outs and other sections detail the composition and

functions of the Adjustment Board and provide for

arbitration where an impasse is reached between

union and management representatives appearing be-

fore the Board.

In April 1968, it became an “‘official” position of

the Union that Respondent was discriminating

against employees of minority races, especially

against Negroes and older employees. It so informed

the Respondent. Nothing came of the complaint. In

time, and after further discussion with minority group

employees and governmental and other interested agen-

cies, it was agreed that the Union would take what-

ever steps necessary, including arbitration, to adjudi-

cate the employees’ grievances. Accordingly, on Sep-

tember 4, the Union formally charged the Respond-

ent with breach of Sections 21(F) and 5(B) and

asked for an Adjustment Board meeting, although

it was prepared to proceed to arbitration if the Re-

spondent were willing.

The Union’s attempt to adjudicate the grievances

on an individual basis met with objections from

Hawkins and Hollins and other employees. They

desired the matter to be presented as an issue affect-

ing all employees, and insisted on meeting with Re-

spondent’s president. It is not clear whether the

employees in attendance were only those whose

grievance the Union was prepared to prosecute then.

In any event, the meeting apparently terminated

when Hawkins, Hollins, and the other employees

walked out.® However, as the result of the Union’s

representations one employee, who had complained

about discrimination in the past, was promoted and

one other employee was said to have benefited from

the Union’s intervention.

The efforts of Hollins to meet with Respondent’s

president to present his views and to discuss what

was happening among minority employees were un-

successful. On November 2, Hawkins, Hollins, and

at least two other employees began picketing the

Emporium. The picketing was on the employees’ own

time, it was orderly, and was accompanied by the

distribution of pamphlets which called on the public

*Another meeting of the Adjustment Board was held without

the presence of employees who walked out but what, if anything,

resulted therefrom is not indicated.

to boycott Respondent because of its alleged racial

policies. The Respondent followed with a warning to

the employees that their charges were untrue, their

activities injurious to the Respondent, and that tiey

could be discharged if these activities continued.

When a week later the employees again picketed the

store, Respondent discharged Hawkins and Hollins.

The reason assigned was the distribution of the boy-

cott pamphlets on November 9. The Union thereafter

protested the discharges to the Respondent, although

it was not the one to file the charge in the instant

proceeding. It was neither charged nor found that

the Respondent had in fact discriminated against it

(sic) minority employees.

The General Counsel maintained that the an-

ployees had reasonable grounds for believing that

discrimination existed, and the Trial Examiner found

that because of the “‘official” position adopted by the

Union, of which the two employees had knowledze,

Hawkins and Hollins acted in a good-faith belief that

Respondent was practicing discrimination.”

The Trial Examiner acknowledged that ‘concerted

employee activities with an object of bettering the

working conditions of employees belonging to ni-

nority groups .. . are protected under the Act is

hardly open to challenge,” and that, unlike the sitva-

tion in Tanner" there is no evidence that the picket-

ing had as an object the hiring of minority group

1°T agree with the Trial Examiner that there is no basis for

drawing an inference that the Respondent discriminated agairst

the employees on racial grounds. Nor would I find that the Unin

on its part breached its duty of fair representation.

"Tanner Motor Livery, Ltd., 148 NLRB 1402.

oO ee. es mma

employees. In dismissing the 8(a)(1) allegation of

the complaint, however, he concluded that the em-

ployees had, nonetheless, lost the protection of the

Act because their activities amounted to, in short, no

less than a demand that the Respondent bargain with

the picketing employees for the entire group of

minority employees on terms and conditions of em-

ployment.

I find, however, that the Trial Examiner miscon-

ceived the nature of the employees’ concerted activi-

ties. There is nothing in the evidence, on which the

Trial Examiner relied, indicative of a purpose to

‘“‘negotiate” with Respondent’s president on any terms

or conditions of employment. All that is shown is that

Hollins told Batchelder he wanted to ‘‘discuss what

was happening among minority employees,” that the

employees picketing would be satisfied with nothing

less than a meeting with him, that they wanted to

‘talk to the top management to get better conditions

for the Emporium,” and that they were seeking to

accomplish their objectives through ‘“‘group talk and

through the president if we could talk to him.”

Granted that the employees were seeking ‘“‘better

conditions” and a meeting with Respondent’s presi-

dent for that purpose, it is nonetheless apparent that

what the Trial Examiner conceived as a demand for

bargaining for the minority employees was no more

than an effort on the part of those seeking the meet-

ing to urge upon the president to use his good offices

to see to it that the alleged discriminatory treatment

of the minority employees, which both the employees

and the Union believed in fact existed, and were

in violation of an express provision of the contract,

was corrected. Such a course was unquestionably open

to the Respondent to take without in any way in-

fringing on the Union’s status as the recognized

bargaining representative.'? Indeed, it was an obliga-

tion imposed upon Respondent not only by the

cuntract’s nondiscrimination provision, but by the

mandate of Title VII of the Civil Rights Act of

1964.'* Moreover, it is equally clear from the enact-

ment of Section 9(a) that it was not congressional

intent that the mere submission of a grievance by an

employee was to be considered in derogation of the

rights of employees to bargain through their chosen

representative.

There is not a seintilla of proof that the picketing

employees wanted discussions leading to agreements

on new conditions of employment, or even a modifica-

tion of existing ones, or even to effect a compromise

of the grievances. In short, the employees did not

picket Respondent for the purpose of negotiating an

12Section 9(a) of the Act.

'8The Supreme Court cited in Southern Steamship Company v.

N.L.R.B., 316 U.S. 31, 47, that the Board may not ignore other and

equally important congressional objectives. In enacting the Civil

Rights Act of 1964 Congress expressed its deep coneern that the

invidious practice of discrimination in employment based on racial

grounds be eliminated. And such has similarly been the concern

of the judiciary. (See Steele v. Louisville & Nashville Railroad

Co., 323 U.S. 192.) It is not, of course, the Board’s function to

enforee provisions of the Civil Rights Act but I think it is in-

cumbent on the Board, when presented with an issue involving

racial discrimination in employment, that it should not lightly

condone disciplinary action against employees engaged in concert-

ediy protesting alleged discrimination because of race unless the

concerted conduct involves a most serious breach of the policies

underlying our own Act. Such is not the case here.

7 :

agreement bat simply to urge Respondent to take

action to correct conditions of racial discrimination

which the employees reasonably believed existed at

the Emporium. In fact, insofar as this record shows,

the picketing employees sought only a simple con-

ference to eall attention to their situation; it is not

even clear that they intended to present a formal

grievance. I cannot see how on the tenuous evidence

present in this case, the majority can find that “to

extend the protection of the Act to the two discharged

employees would seriously undermine the rights of

employees to bargain collectively through representa-

tives of their own choosing.”

I find no ground justifying the discharges of the

two employees for engaging in concerted activity

within the meaning of Section 7 of the Act."* I would

reverse the Trial Examiner, find the 8(a)(1) viola-

tion, and grant the appropriate remedy.

Dated, Washington, D.C.

July 22, 1971.

Gerald A. Brown, Member

National Labor Relations Board

4The Trial Examiner did not find, nor would I, that the lan-

guage used by the employees in their appeal to the publie was so

intemperate as to deny them the protection of the Act. (See Linn

v. United Plant Guard Workers of America, Local 114, 383 US.

53, 63 (1966). Pettway v. American Cast Iron Pipe Company, 411

F.2d 998, 1007 (C.A. 5, 1969). Nor do I find merit in Respond-

ent’s contention that the employees’ conduct was sufficiently dis-

loyal to make such conduct unprotected activity. The picketing

was conducted on the employees’ own time and there was no with-

holding of services and no request that other employees do so. The

pamphlets did not attack the quality of Respondent’s goods or

services but only the discriminatory conditions of employment it

was believed prevailed. See Edir, Inc., d/b/a Wolfie’s, 159 NLRB

686.

United States of America

Before The National Labor Relations Board

Division of Trial Examiners

Branch Office

San Francisco, California

Case No. 20-CA-5304

The Emporium

and

Western Addition Community Organization

Walter L. Kintz, Esq., and Douglas

H. Barton, Esq., for the

General Counsel.

George O. Bahrs, Esq., of San

Francisco, Calif., for the

Respondent.

Kenneth Hecht, Esq., of San

Francisco, Calif., for the

Charging Party.

TRIAL EXAMINER’S DECISION

William E. Spencer, Trial Examiner: The com-

plaint in this proceeding," based on a charge duly

filed on Noyember 19, 1968, aileged in substance that

the Respondent herein, in violation of Section 8(a)

“Dated March 4, 1969.

(1) of the National Labor Relations Act, hereinafter

called the Act, discharged two of its employees, Jim

Joseph Hollins and Tom Hawkins, because of their

protected concerted activities. Respondent in its duly

filed answer denied the said allegation.

A hearing participated in by all parties was con-

ducted before me in San Francisco, California, on

April 8, 1969, and on or before May 15, 1969, each

of the parties filed a brief.

Upon the entire record, my observation of wit-

nesses, and upon consideration of the excellent and

helpful briefs filed with me, I make the following:

Findings of Fact

I. The Business of the Employer

Respondent, a California corporation, engaged in

the operation of retail stores in the State of Cali-

fornia, during the past year in the course and conduct

of its business operations, made gross sales in excess

of $500,000, and purchased and received goods valued

in excess of $50,000 directly from outside the State.

This proceeding is directly related to the operation

of its San Francisco department store, The Em-

porium.

II. The Labor Organization Involved

Department Store Employees Union, called the

Union hereinafter, is a labor organization which at

all times material herein was the exclusive repre-

sentative of Respondent’s employees in an appropriate

unit, at its San Francis+o store, The Emporium.

III. The Alleged Unfair Labor Practices

1. The issue

This is a discharge case brought under Section

8(a)(1) of the Act. On November 11, 1968, The

Emporium, a leading San Francisco department store,

after a written warning, discharged two of its em-

ployees, Tom Hawkins and James Joseph Hollins,

both Negroes, when for a second time they picketed

the store on their own time, both times calling for a

boycott of the store by a minority race on the

ground that the store was “racist.”

2. Respondent’s bargaining agreement

At all material times the Respondent was a member

of a multi-employer group and as such signatory to a

collective bargaining agreement with the Union, No

question is raised as to the validity of the agreement

or the status of the Union as exclusive bargaining

representative of Respondent employees in an appro-

priate unit.

This agreement provides, inter alia.:

Section 36(A), “There shall be no strike or lockout

during the life of this agreement.”

Section 21(E), “No person shall be discriminated

against in regard to hire, tenure of employment or

job status by reason of race, color, creed, national

origin, age or sex.”

Section 5(B), “Any act of any employer, repre-

sentative of the Union, or any employee that is inter-

oN ee Ie OEE ES ee

fering with the faithful performance of this

agreement ... may be referred to the Adjustment

Board for such action as the Adjustment Board

deems proper, and is permissive within this agree-

ment.”

Section 36(B, C, D, E, F) contains a detailed

description of the functions of the Adjustment Board,

its composition, and provisions for arbitration where

an impasse is reached between union and management

representatives appearing before the Board.

3. The issue of racial discrimination

Walter L. Johnson, chief executive officer of the

Union, testified credibly that after discussions with

employees in April, 1968, it became the “official”

position of the Union that discrimination against

employees belonging to minority races existed in Re-

spondent’s San Francisco store. Following a meeting

in April, the Union’s position with respect to dis-

crimination and numerous other matters affecting

employment in Respondent’s store, was formulated

in a letter dated April 11, which included, inter alia,

this language:

Probably the most important matter raised was

the possibility of racial discrimination. This is

outlawed under the terms of the agreement and

certainly again in this day and age should not be

a problem. It was the general feeling of almost

all present that discrimination does exist and

that this discrimination is directed against the

Negro employees and the more senior employees,

senior, that is, in the point of age.

According to Johnson’s credited testimony copies of

this letter were distributed to several union members

and it was also served on the Retailer’s Council, the

bargaining agent for the multi-employer unit with

which The Emporium was affiliated. Following the is-

suance of this letter, according to Johnson, there were

meetings with the Retailer’s Council and The Em-

porium, at which it was agreed that the Respondent

would “look into the matter” of discrimination and

see what could be done to “improve conditions.”

In May, at the request of a union member, Johnson

met with some ten employees. At this meeting, ac-

cording to Johnson’s credited testimony, the main

concern was the promotion of one Russell Young, a

Negro. (This same matter had been broached in the

prior meeting.) When it was pointed out that Young

was leaving on his vacation it was agreed to take the

matter up at a later meeting. This later meeting

occurred about September 3 at the Union hall. In

addition to Union representatives and some Emporium

employees, it was attended by representatives of the

Fair Employment Practices Committee (FEPC) and

the’ Equal Economic Opportunity Commission

(EEOC). The matter of Young was again stressed, it

heing claimed that he had been passed over for a

promotion which was given, instead, to an “outsider.”

Johnson testified concerning the September 3 meet-

ing:

At this meeting there were quite a few things

discussed and we specifically informed the in-

dividuals that we were going to go into an

Adjustment Board, that we wanted to process

these grievances and we felt that there were

problems of discrimination and it was my own

personal feeling that all the discriminatory acts

should be processed and that we ought to follow

through and take care of it.

At this meeting I specifically . . . pointed out

that it is going to take a long time in some of

these cases, but that they would not only be help-

ing themselves, but other people involved in it,

because we had very strong feelings on the ques-

tion,

It was agreed at that time and they were advised

by both Mr. Seott (EEOC) and Mr. Smith

(FEPC) to take it to the union and that the

union should follow through and take whatever

steps are necessary up to and including arbitra-

tion [provided for in the bargaining agreement]

to adjudicate the grievances.

Both Hollins and Hawkins were present at this,

and prior meetings.

By letter dated September 4, the Union addressed

the Retailer’s Council as follows: !

Department Store Employees Union has made

every effort to resolve the grievances raised with

The Emporium regarding matters concerning our

members employed in the stock and marking

areas.

Apparently we have been somewhat less than

successful in our efforts and it appears the only

recourse we have is to request a meeting of the

Adjustment Board to hear the entire case. This

communication will serve as our request for a

meeting of the board.

We specifically charge the Emporium with vio-

lations of Section 5 B and 21 E, of the Agree-

ment between the San Francisco Retailers

Council and Local 1100. We have approximately

120 pages of testimony, recorded by a court

reporter to substantiate our position.’

We are ready to proceed to immediate arbitratio

if the Emporium is agreeable. ,

Would you kindly contact me in order that a

mutually convenient date may be agreed to.

Pursuant to this letter a meeting of the Adjust-

ment Board, as provided for under the bargaining

agreement, occurred on October 16. At this meeting

the four employees who later picketed the Respond-

ent, including Hawkins and Hollins, stated in effect

that they would not participate as individuals but

only as a group; that they objected to prosecuting

grievances on an individual basis and wanted the

matter of racial discrimination presented as an issue

affecting all employees belonging to minority races;

that they insisted on meeting with Respondent’s

president ;? and would not go ahead with the Ad-

justment Board hearing. Thereupon, the four of them

walked out of the meeting.

‘A transcript was made of the mecting of September 3.

*Hawkins testified that Hollins said that they would not testify

as individuals but only as a group whose main purpose was to talk

to the Respondent's president and to reach an agreement with him

on conditions at the Emporium; that they wanted to talk to the

president or to no one.

Johnson, who was unable to attend the meeting but

who called to inquire about it, testified concerning

his reaction on being informed that the four em-

ployees refused to testify as individuals:

I wasn’t very happy because we had involved

everybody including our attorney and we had

prepared to go on into arbitration.

Several times I informed all of the people that

in my opinion the only solution to the problem

was to follow the agreement in order that we

could then have some lasting effect on any situa-

tion of discrimination.

I feel very badly that we were not able to process

it after the testimony was not presented by the

affected individuals, and this is very vital testi-

mony, our attorney advised that it would be very

difficult to proceed to arbitration because we

would not have a whole case to present.®

With respect to Russell Young concerning whom

complaints had been filed with the Union on several

occasions, apparently on the basis of the Union’s rep-

resentations he was promoted to the office of first as-

sistant manager. The date of his promotion is not

established but it occurred before the start of any

picketing. Hawkins named one other, Fata, as having

benefitted from the Union’s intervention.

8Possiblv there was a second meeting of the Adjustment Board

on October 18, not attended by the four employees who walked out

on the prior mecting, but what business, if any, was transacted

there, is not sufficiently developed in the record for a finding.

4, The picketing

Unable to have the issue of racial discrimination as

they viewed it processed by the Union as a single

issue affecting all employees belonging to minority

races, Hollins attempted to present his views in the

matter to Respondent’s president, Batchelder. He told

Batchelder that he wanted to discuss what was hap-

pening among minority employees. Batchelder re-

plied that Personnel Director, Henderson, attended to

such matters and he should see Henderson who took

care of “problems like that.” Hollins testified that he

had previously discussed the issue with Henderson

but now refused Batchelder’s suggestion.‘

On October 22, Hawkins, Hollins, and two or three

other employees, held a press conference regarding

what they viewed as Respondent’s discriminatory ra-

cial policies, Attending this meeting were representa-

tives of local newspapers and radio stations. It being

admitted that the statements these employees made

public at this meeting were substantially the same as

the text of pamphlets they later distributed while pick-

eting, reference is made to that text to be reproduced

below.

On the following Saturday, November 2, Hawkins,

Hollins, and at least two other employees not named

in the complaint began picketing in front of The

Emporium. The picketing occurred on their own time.

‘Later, while the picketing was in progress, Johnson saw Hollins

and when Hollins told him the only one they [the picketeers]

wanted to talk to was Batchelder, replied that he, Johnson, was

spokesman for the Union, represented a few thousand clerks, and

had never met Batchelder.

The entrances to the store were not obstructed. There

was neither violence nor incitation to violence. The

text of the pamphlets distributed to passersby by those

picketing follows:

BEWARE EMPORIUM SHOPPERS

BOYCOTT IS ON ! 1!

For years at The Emporium black, brown, yellow

and red people, have worked at the lowest jobs, at

the lowest levels. Time and time again we have

seen intelligent hard working brothers and sisters

denied promotions and basic * spect.

The Emporium is a 20th Century colonial plan-

tation. The brothers and sisters are being treated

the same way as our brothers are being treated

in the slave mines of South Africa.

Whenever the racist pig at The Emporium in-

jures or harms a black sister or brother, they in-

jure and insult all black people. The Emporium

must pay for these insults. Therefore, we en-

courage all of our people to take their money out

of this racist store, until black people have full

employmeint and are promoted justly through-

out The Emporium.

We welcome the support of our brothers and sis-

ters from the churches, unions, sororities, frater-

nities, social clubs, Afro-American Institute,

Black Panther Party, W.A.C.O. and the Poor

People’s Institute.

5. The discharge

On November 7, Hawkins and Hollins were called

to the office of Respondent’s manager of labor rela-

tions, Paul Ehrenfried, and handed the following

notice:

On October 22, 1968, you issued a public state-

ment at a press conference to which all newspa-

pers, radio, and TV stations were invited. The

contents of this statement were substantially the

same as those set forth in the sheet attached. This

statement was broadcast on Channel 2 on October

22, 1968 and Station KDIA,

On November 2nd you distributed copies of the

attached statement to Negro customers and pros-

pective customers, and to other persons passing

by in front of The Emporium.

These statements are untrue and are intended to

and will, if continued injure the reputation of

The Emporium.

There are ample legal remedies to correct any

discrimination you may claim to exist. Therefore,

we view your activities as a deliberate and unjus-

tified attempt to injure your employer.

This is to inform you that you may be dis-

charged if you repeat any of the above acts or

make any similar public statement.

On November 9, Hollins and Hawkins for a second

time, again on their own time, picketed The Empo-

rium and handed out pamphlets to the public which

in all material respects were identical with the

pamphlets distributed on the prior occasion, As on the

prior occasions there was no violence, no incitation to

violence, no criticism of Respondent’s product, and no

blocking of entrances to Respondent’s store.

On November 11, the Respondent discharged Hol-

lins and Hawkins. The discharge slips given these

employees bore the notation:

You are being discharged today. Distribution of

“Boycott Emporium” literature on Saturday, No-

vember 9, 1968 in front of The Emporium, 855

Market Street, S.F., pursuant to written warning

dated 11/7/68 for similar action on 11/2/68,

6. The Union vs. the picketing

In view of what appears to be the General Coun-

sel’s position that the Union concurred or at least

acquiesced in the picketing activities of the two dis-

chargees, in addition to what has already been noted

of the differences expressed between the Union’s ap-

proach to the processing of grievances with respect to

the issue of racial discrimination under the bargain-

ing agreement and that pursued by Hawkins and

Hollins, it is noted that W. Griffin, the Union’s busi-

ness agent, testified that Johnson did not advise these

employees to picket, but told them it was up to them as

individuals, that they could take whatever “actions

they wished,” but he hoped they would follow the

union program through arbitration and the Adjust-

ment Board. Griffin further testified that after the

picketing started he told Hawkins that they—the

picketing employees—were going the wrong way about

it, that they should “let the Union handle it.” John-

son testified that he never warned or instructed em-

ployees not to engage in activities on their own, but at

the September meeting, when some employees exhibited

frustration, and it was suggested that The Emporium

he picketed, the empl

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