# Petition — Emporium Capwell Co. v. Western Addition Community Organization > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0021%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 420 U.S. 50 ## 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 I. 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 5 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. 2 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). 3 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. 4 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 — — —- 5 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). 6 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). 7 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, 8 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 —_—_ 9 (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 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. 2 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). 3 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. 4 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. 5 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. 6 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. 7 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. 8 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. 10 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 , 11 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. 12 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.** I, 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- 7 Section 227d. at 9. Td. at 15, : *4Members Jenkins and Brown each filed dissenting opinions. 13 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. 14 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). 15 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 16 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 17 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). 18 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. 19 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- 20 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. 21 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 22 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. 23 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. 24 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. 25 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). 26 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, 27 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. 28 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. 29 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. 30 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 31 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 32 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. 33 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- 34 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 35 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. * * * 36 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. * * & 37 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, 38 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: 39 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 40 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 41 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 42 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 43 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 44 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 45 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 46 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 47 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 , 48 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 49 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 oe 50 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 51 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 52 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 53 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. o4 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. 55 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. 56 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, 57 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. 38 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. 59 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 60 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, 61 335, 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. ] 62 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. 63 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 64 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. es 65 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 a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0021%3A01. Public record. Not legal advice.