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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1974
- **Citation:** 415 U.S. 913

## Text

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Reasons for granting the writ
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SE ING oo ocbsccudcuticcdambiicocan
Statutes involved
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0031%3A1. Public record. Not legal advice.