Petition — NLRB v. Western Addition Community Organization, et al.

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Reasons for granting the writ

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SE ING oo ocbsccudcuticcdambiicocan

Statutes involved

I Oi ik i

A. The Board’s findings of fact......._____-

B. The Board’s conclusion and order_____-__-

C. The court of appeals’ decision. _________-

CITATIONS

Cases:

Ford Motor Co. v. Huffman, 345 U.S. 330___-

Green v. McDonnell Douglas, 463 F. 2d 337__-

J. I. Case Co., v. National Labor Relations

Bs ee Ces Sncctienttcn<nbdctennss

Local Union No. 12, United Rubber C., L. & P.

Workers v. National Labor Relations Board,

368 F. 2d 12, certiorari denied, 389 U.S.

Medo Photo Corp. v. National Labor Relations

pK Se een

527-064—73——-1

18

14

Cases—Continued

National Labor Relations Board vy. Allis-

Chalmers Mfg. Co., 388 U.S. 175__--------

National Labor Relations Board vy. Draper

Carp. 168 FB. B6 Wips cuwccnsecceccessven

National Labor Relations Board v. Local Union

No. 1229 (Jefferson Standard), 346 U.S. 464.

National Labor Relations Board v. Mansion

House Center Management Corp., 473 F. 2d

Gi aucistina didn an tbiniined

National Labor Relations Board v. Shop Rite

Foods, Inc., 430 F. 2d 786__.....---------

National Labor Relations Board v. Sunset Min-

erals, Inc., 211 F. 9d 234. ...........-..-..

National Labor Relations Board v. Tanner

Motor Livery, Lid., 419 F. 2d 216____-_---

Pettway v. American Cast Iron Pipe Co., 411 F.

TN cd catia chads ein eeaiaenaianie atte

Plasti-Line, Inc. v. National Labor Relations

RE is Sr enabindntdiniinewdnnes

Vaca v. Sipes, 386 U.S. 171___.--.---------

Wallace Corp. v. National Labor Relations

EE Mend datuienecansentet

Statutes:

National Labor Relations Act, as amended (61

Stat. 136, 73 Stat. 519, 29 U.S.C. 151, et

seq):

I BR os ee 10, 13

GNI. 6 ecdahateseogsbamepeet

Section I ciinals ean nalinedial cues

19, 20

19

lll

Statutes—Continued

Civil Rights Act of 1964, Title VII, as amen-

ded, 42 U.S.C. 2000e, et seq.:

Section 703(a), 42 U.S.C. 2000e-2(a)-__- 16, 19 19

Section 704(a), 42 U.S.C. 2000e-3(a)__.. 12,

16, 17,18

Section 706(e), 42 U.S.C. 2000e-5(e) _ ___ 16

Civil Rights Act Amendments of 1972, Sec-

tion 706(f)(1), as added by P.L. 92-961,

5 Eh Dn oe 16

Miscellaneous:

H.Rep No. 1147 74th Cong., Ist Sess.._____- 14

Legislative History of Titles V1l and XI of

Civil Rights Act of 1964 (U.S. Equal Em-

ployment Opportunity Commission) _____- 17

S. Rep. No. 573 ,74th Cong., Ist Sess,.______ 14

Gn the Supreme Gourt of the Bnited States

Octoser TERM, 1973

No.

NaTIONAL LaBor RELATIONS BoaRD, PETITIONER

v.

WesTeRN AppiTtioN COMMUNITY ORGANIZATION, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUM-

BIA CIRCUIT

The Solicitor General, on behalf of the National

Labor Relations Board, petitions for a writ of certio-

rari to review the judgment of the United States

Court of Appeals for the District of Columbia Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App., pp.

1~53) * is not yet reported. The decision and order of

the Board are reported at 192 NLRB 173 (Pet. App.,

pp. 54-77, 78-106).

* Since the opinions below are lengthy and have already been

reproduced as an appendix to the petition of The Emporium Cap-

well Co., in No. 73-696, O.T. 1973, seeking review of the same

judgment, “Pet. App.” references are to the appendix to that

petition.

a)

2

JURISDICTION

The judgment of the court of appeals (App., infra,

p. 23) was entered on June 29, 1973. On September 19,

1973, the Chief Justice extended the time for filing a pe-

tition for a writ of certiorari to and including Novem-

ber 26, 1973. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

Whether it is an unfair labor practice for an em-

ployer to discharge employees who, during good faith

efforts by the union that is the exclusive bargaining rep-

resentative of the employees to eliminate alleged racially

discriminatory employment practices under the griev-

ance and arbitration procedures of the collective bar-

gaining contract, insisted that the company bargain

directly with them to eliminate those practices and,

upon the company’s refusal to do so, picketed the

company and urged customers to boycott it.

STATUTES INVOLVED

The relevant statutory provisions are set forth in

Pet. App., 108-110.

STATEMENT

A. The Board’s Findings of Fact

The Company operates a retail department store in

San Francisco, California (A. 232-233).* Through its

menibership in a multi-employer group, the Retailer’s

Council, the Company was signatory to a collective

*“A.” refers to the appendix to the briefs |. the court below.

A copy has been filed with the clerk.

bargaining agreement with the Department Store Em-

ployes Union (the “Union”), which was the exclu-

sive bargaining representative of the employees in the

stock and marking areas of its store (A. 233). The ap-

plicable bargaining agreement provided :

Section 21(E), No person shall be discrimi-

nated against in regard to hire, tenure of em-

ployment _r 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 perform-

ance of this agreement * * * may be referred

to the Adjustment Board for such action as the

Adjustment Board deems proper, and permis-

sive within this agreement. [A. 233; 131-132,

205, 201.]°

The agreement also provided that, if after considering

a submitted issue for one week the Adjustment Board

were unable to reach a settlement, either party could

insist upon binding arbitration (A. 233; 208). Finally,

the agreement contained a clause providing that there

“shall be no strike or lockout during the life of this

agreement” (Section 36(A), A. 233; 208).

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

of Company employees, including Tom Hawkins and

James Joseph Hollins, submitted to union representa-

tives a list of grievances alleging that the Company

* The Adjustment Board consisted of six members, three from

the Company and three from the Union (Section 36(B), A. 208).

* All dates are in 1968 unless otherwise indicated.

4

was discriminating against racial minorities (A. 233;

133-134), including the charge that employee Russell

Young had been denied advancement solely because he

is black (A. 234; 134-135). Following these meetings,

Union Secretary-Treasurer Walter Johnson desig-

nated a union committee to investigate the allegations,

and later prepared a detailed report outlining the

employees’ contentions, which stated:

Probably the most important matter raised

was the possibility of racial discrimination.

This is outlawed under the terms of the agree-

ment and certainly again in this day and age

should not be a problem. It was the general

feeling of almost all present that discrimination

does exist and that this discrimination is directed

against the Negro employees and the more senior

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

[ A. 234; 116, 134-135, 193.] °

Shortly thereafter, Johnson presented his report to

the Retailer’s Council, which concluded that the griev-

ances should be taken directly to the Company (A.

34-35). Accordingly, in mid-April, Johnson met with

Company labor relations manager Paul Ehrenfried

and it was agreed that the Company “would lock into”

the situation and “see what could be done” (A. 234;

135).

In May, a group of ten employees, including

Hawkins and Hollins, again met with Union repre-

sentative Johnson. They discussed the problem of

racial discrimination in general and the Russell

~~? Copies of the report were distributed to several union mem-

bers, and Hawkins and Hollins (who were not members of the

Union) saw it prior to engaging in their concerted protest

(A. 41-42, 117, 138).

5

Young case in particular (A. 234; 134-136) ; however,

since Young was about to begin his summer vacation,

it was agreed that further investigation of the matter

should await his return (id. at 134-136).

On about September 3, Johnson again met with the

employees, including Hawkins and Hollins, and with

representatives of the State Fair Employment Prac-

tices Committee (“FEPC”) and the local Economic

Opportunity Council (“EOC”) (A. 234; 112, 136). At

that meeting Johnson stated that the Union had

considered the problem and had concluded that the

Company had been acting discriminatorily. He added

that in accordance with its contract the Union would

demand an Adjustment Board proceeding and would

insist upon arbitration if necessary. While acknowl-

edging that arbitration was a time-consuming pro-

cedure (A. 234; 146), Johnson pointed out that an

arbitration award, once achieved, would produce a “long

lasting effect” which would benefit not only the em-

ployees having an immediate interest in the problem, but

“other people involved in it” as well (A. 234; 136-137,

146).

Some of the employees present expressed ‘‘frustra-

tion” with Johnson’s proposal, and suggested that the

Union picket the Company’s store (A. 145-146). John-

son rejected the idea, and, in an exchange with Hol-

lins, explained that the Union was obligated to seek

satisfaction of grievances according to the terms of its

contract and thus could not engage in “dramatic” pro-

tests such as boycotts (A. 244-245; 145-147). Johnson

further stated that, while individual employees ‘‘could

take whatever action they wanted so long as it was

527-054— 73-2

6

legal,” it was the Union’s advice that they follow an

“orderly legal procedure” (A. 145-146). The EOC and

FEPC representatives supported Johnson’s position

(A, 234; 137, 146, 148-149, 153-155).

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. The

letter stated (A. 235; 144, 166):

We specifically charge the Emporium with

violations of Sections 5(B) and 21(E), of the

Agreement between the San Francisco Retailers

Council and [the Union]. We have approxi-

mately 120 pages of testimony, recorded by a

court reporter to substantiate our position.

We are ready to proceed to immediate arbitra-

tion if The Emporium is ready.

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

justment Board was convened on October 16. At the

outset, Union agent Williams attempted to present

evidence of the Company’s practices by questioning

employees regarding their individual grievances. He

was interrupted by Hollins, who—acting as spokes-

man 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 the four employees

would not “speak as individuals,’ but would act only

“as a group” (A. 235; 43-44, 49, 115, 113). Hollins

added that the group “wanted to talk to the President

of The Emporium and wouldn’t talk to anybody else”

(A, 235; 62, 60), that their “main purpose was to talk

to the President to try to reach an agreement with

7

him to straighten out the problems and conditions of

The Emporium” (A. 235; 60). Then, after refusing to

give any testimony regarding the individual employee

complaints, Hollins, Hawkins, Epps, and Washington

walked out of the meeting (A. 235; 43-44, 114).

The Adjustment Board met again on October 18,

but none of the four attended. The record is unclear

as to what transpired at the meeting, but thereafter,

through the Union’s intervention, Russell Young was

promoted to the position of First Assistant Manager,

and Fata, another minority employee, was also pro-

moted to a supervisory position (A. 236; 55-56).°

After the October 18 meeting, Hollins went to Com-

pany President Batchelder and insisted 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 \ ith Henderson, the Company’s personnel

director (A 236; 120-121). Hollins refused (A. 236;

122).

On October 22, Hawkins and Hollins, together with

several uther 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 Empo-

rium was engaging in racist conduct by discriminating

against racial minorities and that the employees were

* Notwithstanding the results achieved for Young and Fata,

the Union's attorney advised the Union that further success

with arbitration was unlikely without the testimony of Hawkins,

Hollins, and the other employees (A. 138).

8

planning to picket the store. Hollins also read the

contents of a handbill which the group intended to

distribute to the public (see below), adding that its

objective was “[t]o try to talk to the top management to

get better conditions for The Emporium” (A. 236; 17-

20, 62-63, 81-82).

On the following Saturday, November 2, employees

Hollins, Hawkins, Epps, and Washington picketed the

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

lowing handbill to people entering or leaving the

store:

BEWARE EMPORIUM SHOPPERS

BOYCOTT IS ON !!!

For years at the Emporium black, brown,

yellow, and red people, have worked at the low-

est jobs, at the lowest levels. Time and again

we have seen intelligent hard working brothers

and sisters denied promotions and basic re-

spect.

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 peo-

ple have full employment and are promoted

justly throughout the Emporium.

* The picketing was peaceful, was not done during the picket-

ing employees’ working hours and did not block entrances to the

store (Pet. App., pp. 86-88, 94-95).

We welcome the support of our brothers and

sisters from the churches, unions, sororities, fra-

ternities, social clubs, Afro-American Institute,

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

People’s Institute. [ A. 236-237, 198. ]

While the picketing was in progress, Johnson, the

Union representative, told Hollins that he did not want

to see Hollins fired and that the only way to resolve the

matter was through arbitration. Hollins ignored John-

son’s suggestion and again stated that ‘‘the only one

they wanted to talk to was Mr. Batchelder’’ (A. 236-

237; 139).

On November 7, Hollins and Hawkins were called

to labor relations manager Ehrenfried’s office, and

given the following written warning with respect to

the prior press conference and handbilling :

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. There-

fore, we view your activities as a deliberate and

unjustified attempt to injure your employer.

This is to inform you that you may be dis-

charged if you repeat any of the above acts or

make any similar public statement. [ A. 237; 26—

27, 85-86, 197, 189.]

Nevertheless, on Saturday, November 9, Hollins and

Hawkins again picketed The Emporium and distrib-

uted leaflets substantially identical to those distributed

the previous week (A. 237; 26-27, 85-86, 196).

Accordingly, on Monday, November 11, they were

10

called to Ehrenfried’s office and discharged. They

were given discharge slips which bore the notation:

You are being discharged today. Distribution

of ‘“‘Boyeott Emporium” literature on Satur-

day, November 9, 1968, in front of The Empor-

ium, 855 Market Street, S.F., pursuant to writ-

ten warning dated 11/7/68 for similar action on

11/2/68. [ A. 238; 31, 87-88, 195, 188. ]

The Union subsequently filed with the Retailer’s

Council a protest over the discharge of Hawkins and

Hollins, but did not file unfair labor practice charges

with the Board (A. 238, 245; 138). Such charges were

filed on their behalf by respondent Western Addition

Community Organization (Pet. App., p. 11).

B. The Boxurd’s Conclusion and Order

The Board (Members Jenkins and Brown dissent-

ing), sustaining its Trial Examiner, found that the

picketing employees were making a demand that the

Company “‘bargain with [them] for the entire group

of minority employees,’’ notwithstanding that the

Union, the employees’ ‘‘duly designated bargaining

representative, was endeavoring in every way available

to it under the [collective bargaining] agreement to

adjust any and all cases of racial discrimination

brought to its attention” (Pet. App., pp. 103—104).* The

Board concluded that such concerted activity was not

protected by Section 7 of the Act, for it ‘“‘would seri-

* While the Board found that Hawkins and Hollins acted in

the “good faith belief” that the Company was practicing racial

discrimination (Pet. App., p. 97), it did not find that the Company

was in fact engaging in racial discrimination or a pattern or prac-

tice thereof (Pet. App., p. 55,n. 2).

ll

ously undermine the right of employees to bargain

collectively through representatives of their own

choosing, handicap and prejudice the employees’ 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 bargain-

ing agreement and attempting in good faith to meet

whatever demands the bargaining representative put

forth under that agreement” (Pet. App., pp. 104-105).°

Accordingly, the Board dismissed the complaint, which

alleged that the Company violated Section 8(a)(1) of

the Act by discharging Hawkins and Hollins for en-

gaging in the picketing and related activities (Pet.

App., p. 56).

C. The Court of Appeals Decision

The court of appeals agreed that, ‘‘[i]n abandoning

the grievance procedures and seeking to bargain on

their own, the picketers here rendered essentially in-

effective the method of remedying grievances chosen

by their collective bargaining representative and pro-

vided by the collective bargaining agreement’’ (Pet.

App., p. 24). It concluded however, “that this lim-

ited interference alone [was not] sufficient to remove

"©The Board in arriving at its decision considered the views

of the Equal Employment Opportunity Commission and the

National Association for the Advancement of Colored People,

which filed amicus curiae briefs with the Board (Pet. App., p. 54,

n. 1).

12

these concerted activities here from the protection

of the Act” (Pet. App., p. 24). The court deter-

mined that concerted activity involving racial discrim-

ination has a unique status in that Title VIT of the

Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., pro-

seribes racially discriminatory employment practices

wholly apart from any prohibition in the collective

bargaining agreement, and Section 704(a) of that

Title, 42 U.S.C. 2000e-3(a) (infra, p. 17) “precludes

an employer from discharging employees in retalia-

tion for peaceful picketing of the employer’s business

in protest of allegedly discriminatory racial practices”’

(Pet. App., p. 20). Accordingly, it was necessary to

accommodate Section 9(a) of the National Labor

Relations Act (infra, p. 13), which confers upon

the representative selected by a majority of the em-

ployees the exclusive right to bargain for all em-

ployees in the unit, with Title VII. In the court's

view, a reasonable accommodation required the Board,

in cases such as this, to inquire ‘‘whether the union

was actually remedying the discrimination to the full-

est extent possible by the most expedient and effica-

cious means’’; where “‘the union’s efforts fall short of

this high standard, the minority group’s concerted

activities cannot lose its section 7 protection” (Pet.

App., p. 28, emphasis in original). The court

remanded the case to the Board to make that deter-

mination (Pet. App., p.31).’

** The court also provided that, on remand, “the Board may

consider the issue of whether the picketing of these employees,

considering the language used, was so disloyal to their em-

ployer as to remove them from the protection of section 7,”

13

REASONS FOR GRANTING THE WRIT

The holding of the court below—that concerted ac-

tivity by a minority group which would otherwise be

contrary to the principle of majority rule embodied in

Section 9(a) of the National Labor Relations Act is

protected where it seeks to eradicate alleged racially

discriminatory employment conditions—raises an im-

portant and substantial question in the administra-

tion of the National Labor Relations Act. It also

raises a fundamental question concerning the relation-

ship between the National Labor Relations Act and

Title VII of the Civil Rights Act of 1964. Review by

this Court is thus warranted.

1. Section 9(a) of the National Labor Relations Act

provides that the representative selected by a major-

ity of the employees in an appropriate unit shall be

the exclusive representative of all employees in that

unit for purposes of collective bargaining with respect

to wages, hours of employment, or other conditions

of employment. The legislative history of Section 9(a)

under National Labor Relations Board vy. Local Union No. 1229

(Jefferson Standard), 346 U.S. 464 (Pet. App., p. 29). In view

of its disposition of the case, the Board has found it unnecessary

to reach that issue.

Judge Wyzanski, who dissented, would have found the con-

certed activities here protected by Section 7 of the National

Labor Relations Act without any further inquiry by the Board.

In his view, Section 9(a) of the National Labor Relations

Act could not properly be construed as precluding a minority

group from dealing directly with the employer on racial com-

plaints (Pet. App., pp. 45-51). Moreover, since the Board re-

frained from any comment on the “utterances by Hawkins, Hol-

lins, and their associates,” the issue of their propriety was not

properly before the court (Pet. App., pp. 51-52).

14

makes clear that Congress, in order to promote or-

derly collective bargaining, and thereby to preserve

industrial peace, intended to vest in the employees’

chosen representative full power to represent all em-

ployees, including dissident or splinter groups, and

also, as a necessary corrollary, to preclude the em-

ployer from bargaining directly with such groups. See

S. Rep. No. 573 on S. 1958, 74th Cong., Ist Sess. 13;

H. Rep. No. 1147 on 8. 1958, 74th Cong., Ist Sess. 20-21.

See also National Labor Relations Board v. Allis-Chal-

mers Mfg. Co.,388 U.S. 175, 180. Accordingly, this Court

early recognized that “it is a violation of the essen-

tial principle of collective bargaining and an infringe-

ment of the Act for the employer to disregard the

bargaining representative by negotiating with indi-

vidual employees, whether a majority or a minority,

with respect to wages, hours and working conditions.”

Medo Photo Corp. v. National Labor Relations Board,

321 U.S. 678, 684. See also J. I. Case Co. vy. National

Labor Relations Board, 321 U.S. 332, 338-339.

The court below did not disturb the Board’s finding

that the concerted activities here involved ‘‘nothing

short of a demand that [the Company] bargain with

the picketing employees for the entire group of mi-

nority employees” (Pet. App., p. 24, n. 34). The court

also stated that, ‘‘[i]n abandoning the grievance pro-

cedure and seeking to bargain on their own, the pick-

eters here’’ not only interfered with the collective bar-

gaining process, but “rendered essentially ineffective

15

the method of remedying grievances chosen by their

collective bargaining representative and provided by

the collective bargaining agreement” (Pet. App., p.

24)." In his dissenting opinion Judge Wyzanski

similarly recognized that the minority employees’ ac-

tions were a clear ‘‘instance of an attempt to bargain

respecting working conditions * * *” (Pet. App., p. 43).

43).

Thus, unless different principles apply when the mi-

nority employees’ actions are directed against racially

discriminatory employment conditions, the dissident

activities here were contrary to the policy of Section

9(a), and thus fell outside the protection of Section 7

of the Act. See National Labor Relations Board v.

Sunset Minerals, Inc., 211 F. 2d 224 (C.A. 9); Plasti-

Line, Inc. v. National Labor Relations Board, 278 F.

2d 482 (C.A. 6). See also National Labor Relations

Board v. Draper Corp., 145 F. 2d 199 (C.A. 4); Na-

tional Labor Relations Board v. Shop Rite Foods,

Ine., 480 F. 2d 786 (C.A. 5).

The court below concluded that an exception to

the foregoing principles exists for concerted activity

11 The court, however, found that this interference was “lim-

ited,” on grounds that the employees utilized the procedures

provided for in the contract before resorting to self-help, and

that they were working for the same ultimate goal as was the

Union—namely, elimination of racial discrimination (Pet. App.,

pp. 24-26). But, as the Board noted, this cannot neutralize

the fact that the employees, nonetheless, were “acting outside

the agreement and contrary to the Union's advice and urging”

(Pet. App., p. 103). Indeed, they even refused to give testimony

which the Union considered vital to its case, and instead walked

out of the Adjustment Board meetings (supra, p. 7). See also Pet.

App., pp. 42-45, dissenting opinion.

16

involving racial diseri:mination since Title VII of the

Civil Rights Act of 1964 gives the employee an inde-

pendent statutory right to be free of racially discrim-

inatory employment practices, and Section 704(a)

of that Title precludes an employer from discharging

employees for engaging in peaceful picketing to pro-

test such practices. The Board submits that this reason-

ing does not withstand analysis.

While Title VII prohibits an employer from main-

taining racially discriminatory employment conditions

(Section 703(a), 42 U.S.C. 2000e-2(a)), it also pro-

vides a means whereby an employee can obtain redress

for a violation of that Title—.e., he can file a charge

with the Equal Employment Opportunity Commis-

sion, and, if the Commission is unable to eliminate the

discrimination by voluntary means, he can then

attempt to do so through a suit in the federal district

court (Section 706(e), 42 U.S.C. 2000e-5(e))." There

is no indication in Title VII that Congress intended

to go further and authorize an employee to enforce

the rights conferred by Title VII by means which

would be contrary to the policies of the National

* The 1972 amendments to the Civil Rights Act also empower

the Commission to bring such a suit (Section 706(f) (1), added

by P.L. 92-961, 86 Stat. 103).

Harrell Alewander Sr. v. Gardner-Denver Co., No. 72-5847,

argued November 5, 1973, presents the question whether an em-

ployee—who pursues both his contractual remedies by filing a

grievance under the contract grievance and arbitration procedure,

and his federal rights by filing a charge under Title VII—is pre-

cluded from maintaining a federal court suit where an unfav-

orable arbitration decision is entered after the Title VII

charge was filed.

ee ae a

17

Labor Relations Act. On the contrary, during the

Senate debate on Title VII, Senator Clark, one of

the proponents of the legislation, introduced a state-

ment prepared by the Department of Justice which

emphasized that “[n]othing in title VII or any-

where else in this bill affects rights and obligations

under the NLRA,”’ and Senator Clark himself added

that the Title ‘“‘would not affect the present operation

of any part of the NLRA.” Legislative History of Titles

VII and XI of Civil Rights Act of 1964 (U.S. Equal

Employment Opportunity Commission) 3244-3245.

Nor is a different conclusion required by Section

704(a) of Title VII, 42 U.S.C. 2000e-3(a), which

makes it unlawful for an employer “to discriminate

against any of his employees * * * becav«e he has

opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a

charge, testified, assisted, or participated in any man-

ner in an investigation, proceeding, or hearing under

this subchapter.’’ The basic purpose of this provision

is **to protect [the individual] who utilizes the tools pro-

vided by Congress to protect his rights.”” Pettway v.

American Cast Iron Pipe Co., 411 F. 2d 998, 1005

(C.A. 5). The essential “‘tools provided by Congress”

consist of filing a charge with the Equal Employment

Opportunity Commission and, if that proves unavail-

ing, bringing a court suit. While the protection of sec-

tion 704(a) is not limited to the employee who has filed

charges, unlike the National Labor Relations Act,

Title VII contains no provision expressly protecting

picketing and other concerted activity. Although the

court of appeals in Green v. McDonnell Douglas Corp.,

463 F. 2d 337 (C.A. 8), stated that “lawful protest also

commands the same protection” as “filing complaints

to the EEOC,” it added that “we find no suggestion

that [the] protection [of Section 704(a)] extends to

activities which run afoul of the law” (id. at 341).”

Accordingly, if the picketing and related activity in

the present case were contrary to the policies of, and

thus unprotected by, the National Labor Relations

Act (such as picketing in support of a demand for direct

bargaining with a splinter group), they would not be

sanctioned by Section 704(a) of Title VII."

Finally, contrary to the view of the dissenting judge

(Pet. App., p. 42), the Board’s position does not

give the bargaining representative the “‘power to

stand athwart a minority’s claim to the right to seek

racial non-discriminatory conditions.” This Court has

fashioned the duty of fair representation, which “ ‘has

stood as a bulwark to prevent arbitrary union conduct

against individuals stripped of traditional forms of

redress by the provisions of federal labor law.’”

“ The court then went on to hold that the “stall-in” demon-

stration there involved was not a protected activity under Sec-

tion 704(a) (463 F. 2d at 341). Review of that issue was not

sought in this Court. McDonnell Douglass Corp. v. Green, 411

U.S. 792, 797, n. 6. However, the Court stated: “Nothing in

Ran VS GaGED Sk ene to GN Mine SURRS Slee Nie

engaged in such deliberate, unlawful activity against it”

411 U.S. at 803). es -

‘* The court below, in holding that the picketing here would

not be privileged if the Board were to find that the Union was

seeking to eliminate racial discrimination by “the most expedi-

ent and efficacious means,” tacitly acknowledged that the scope of

Section 704(a) may turn upon the scope of the protection af-

forded by Sections 9(a) and 7 of the National Labor Relations

Act (Pet. App., p. 28, emphasis omitted ).

National Labor Relations Board y. Allis-Chalmers

Mfg. Co., supra, 388 U.S. at 181, quoting from Vaca

v. Sipes, 386 U.S. 171, 182. Thus, if a union repre-

sentative were not acting in good faith to adjust the

complaint of a minority employee, the union would

not only be subject to a court suit for breach of its

duty of fair representation (see Vaca v. Sipes, supra),

but it would also violate S2ction 8(b)(1)(A) of the

National Labor Relations Act, 29 U.S.C. 158(b) (1)

(A). See Local Union No. 12, United Rubber C., L. & P.

Workers vy. National Labor Relations Board, 368 F. 2d

12 (C.A. 5), certiorari denied, 389 U.S. 837."

2. The holding of the court below that a proper ac-

commodation between Section 9(a) of the National

Labor Relations Act and Title VII of the Civil Rights

Act of 1964 requires that the union not only act in

good faith to eliminate racial discrimination practiced

by the employer,” but that it do so “to the fullest extent

possible by the most expedient and efficacious means”

“8 This case does not raise, and the Board has not yet had

occasion to pass on, the question whether, in circumstances

where the union has failed to fulfill its obligations as a bar-

gaining representative, the minority employees could bypass the

union and engage in concerted activity of the kind here for

the purpose of compelling the employer to deal directly with

them respecting their complaints. See Pet. App., p. 55, n. 2.

See, also, National Labor Relations Board v. Tanner Motor

Livery, Ltd., 419 F. 2d 216, 221 (C.A. 9). Cf. Wallace Corp. v.

National Labor Relations Board, 323 US. 248, 256; National

Labor Relations Board v. Mansion House Center Management

Corp., 473 F.2d 471 (C.A. 8).

Title VII also prohibits discrimination on grounds of sex,

religion, and national origin (Section 703(a), 42 U.S.C. 2000e-

2(a)). The rationale of the court’s decision would appear to be ap-

plicable to claims of such discrimination as well.

(Pet. App., p. 28, emphasis omitted) would, in the

Board’s view, require it to apply a standard that

would be virtually impossible to administer. The

Board would have to decide whether union efforts,

taken in a good-faith effort to eliminate racial dis-

crimination, constituted the fullest possible endeavors

for “actually remedying” the discrimination and

whether there were more “cxpedient and efficacious

means’ for accomplishing that objective. Under this

standard, the Board would be required, inter alia, to

substitute its judgment for that of the union with

respect to the proper methods for handling the griev-

ances under the grievance and arbitration provisions

of the collective bargaining agreement.

The decision how to process a grievance—how far to

press a particular point, when to concede on a par-

ticular issue and what tactics to use in presenting the

position—involves extremely sensitive and delicate

considerations not susceptible to evaluation under the

kind of standard by which the court of appeals has re-

quired the Board to test the union’s endeavors. Cf. Vaca

v. Stipes, 386 U.S. 171, 191-195. The standard the court

of appeals adopted would substantially curtail the

“wide range of reasonableness [which] must be al-

lowed a statutory representative in serving the unit it

represents’ (Ford Motor Co. v. Huffman, 345 U.S.

330, 338). Inevitably, the very vagueness of this stand-

a

21

ard would encourage employees to resort to self-help to

challenge a large number of union actions in handiing,

under the grievance and arbitration provisions of col-

lective bargaining agreements, complaints of racial dis-

crimination. This, in turn, would undermine the judg-

ment of Congress, reflected in the National Labor Rela-

tions Act that, to the maximum extent possible, disputes

relating to terms and conditions of employment should

be adjusted by the means agreed to by the parties, rather

than through economic pressure.

Unlike the holding of the court below, the Board’s

position gives effect to the policies of Title VII with-

out at the same time nullifying those of Section 9(a).

Thus, the Board’s position requires a minority group

complaining of a Title V'I violation by the employer

to refrain—at least so long as the union representative

is making a good faith effort to cure the violation

(see n. 15, supra)—from engaging in concerted

activity to force the employer to bypass the repre-

sentative. If the individual employees are dissatisfied

with the steps the representative takes, they may

seek a remedy through the administrative and judicial

procedures provided in Title VII.

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Perer G. Nasu,

General Counsel.

JoHN S. IRvina,

Deputy General Counsel.

Parrick Harbin,

Associate General Counsel,

Norton J. Come,

Deputy Associate General Counsel,

ABIGAIL CooLey,

Assistant General Counsel,

National Labor Reiations Board.

NoveMBER 1973.

APPENDIX

United Siates Court of Appeals for the

District of Columbia Circuit

(No. 71-1656, September Teim, 1972)

WESTERN AppITION CoMMUNITY ORGANIZATION,

PETITIONER

v.

NationaL Lasor RELATIONS BoAaRD, RESPONDENT

THe Emporrum CaPpwe.L Company, Intervenor.

Before: Roprnson and MacKinnon, Circuit Judges,

and WyzanskI,* Senior United States District Judge

for the District of Massachusetts.

JUDGMENT

This cause came on to be heard on a petition for review

of an order of the National Labor Relations Board and

was argued by counsel. On consideration of the fore-

going, it is

ORDERED AND ADJUDGED by this Court that the decision

and order of the National Labor Relations Board ap-

*Sitting by designation pursuant to 28 U.S.C. § 294(d).

(23)

24

pealed from in this cause are hereby reversed and this

case is hereby remanded to the Board in accordance with

the opinion of this Court filed herein this date.

Per Curiam.

For the Court:

Huen E. Kure, Clerk.

Date: Jung 29, 1973.

Opinion for the Court filed by Circuit Judge Mac-

KINNON.

Dissenting opinion filed by Senior District Judge

W YZANSKIL.

U.S. GOVERNMENT PRINTING OFFicE ters