Petition — Bell & Howell Co. v. National Labor Relations Board
Supreme Court brief1979
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IN THE
BL ROOAK, JR., CLERK
Supreme Court of the Unites Bates
OCTOBER TERM, 1978
No. €8-1640
BELL & HOWELL COMPANY,
Petitioner,
VS.
NATIONAL LABOR RELATIONS BOARD
and
LOCAL 399, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
THEOPHIL C. KAMMHOLZ
JOHN P. JACOBY
115 South LaSalle Street
Chicago, Illinois 60603
Counsel for Petitioner
Of Counsel:
VEDDER, PRICE, KAUFMAN
& KAMMHOLZ
115 South LaSalle Street
Chicago, Illinois 60605
Gunthorp-Warren Printing Company, Chicago e Financial 6-6565
TABLE OF CONTENTS
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ORS Ee POET eT Tree
Constitutional and Statutory Provisions Involved .......
gg PERT ee eee EEL OL PETE ETE
keh eat hn hee ween pee 4 o-0-0
B. The Board’s Supplemental Decision and Order .
C. The Decision of the Court of Appeals ........
Reasons for Granting the Writ .........scecceccvees
I. The Decision Below Conflicts with Decisions of
the Eighth and Fifth Circuits ..............
II. This Case Presents an Important Question of
Federal Law Which Should Be Decided by This
Rai vale bike chheee ee bee ews cae b ae ri
EE ERAT Actes SIG Tay Ls LYE ie i AB eter Ee a ee
PAGE
ii
TABLE OF AUTHORITIES
Cases
Bekins Moving & Storage Co., 211 NLRB 138 (1974) .. 8,9
Burton v. Wilmington Parking Authority, 365 U.S. 715
ERE SOR =e ager eo ae a ee 10
Haridy Andy, Inc., 228 NLRB 447 (1977) ........... 4,9
Murcel Manufacturing Corp., 231 NLRB 623 (1977) ... 4
NLRB v. Mansion House Center Management Corp., 473
fe Fm Be Re.) y Gee ee Carrere 6,7
NLRB v. Sumter Plywood Corp., 535 F. 2d 917 (Sth Cir.
1976), cert. denied, 429 U.S. 1092 (1977) ........ 7
Trumbull Asphalt Company, Inc., 230 NLRB 646 (1977) 4
Constitutional and Statutory
Provisions
United States Constitution, amend V. ........... 2, 5, 6, 8,9
I eee El err eer reer re. fe eee rere 2
National Labor Relations Act, 61 Stat. 136, 29 U.S.C.
eee (io ks eae ee wav ehs cewe eke 2, 4, 5, 8, 9, 10
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No.
BELL & HOWELL COMPANY,
Petitioner,
vs.
NATIONAL LABOR RELATIONS BOARD
and
LOCAL 399, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
. THE DISTRICT OF COLUMBIA CIRCUIT
Bell & Howell Company prays that a writ of certiorari issue
to review the judgment of the United States Court of Appeals
for the District of Columbia Circuit entered on January 30,
1979, enforcing an order of the National Labor Relations Board
against Bell & Howell.
OPINIONS BELOW
The opinion of the Court of Appeals (Appendix A, infra,
pp. Al-A27) is not reported officially at the present time. The
Decisions of the National Labor Relations Board are reported
2
at 213 NLRB 407 (1974) (Appendix B, infra, pp. A28-A36),
220 NLRB 881 (1975) (Appendix C, infra, pp. A37-A46),
and 230 NLRB 420 (1977) (Appendix D, infra, pp. A47-
AS59).
JURISDICTION
The decision of the Court below issued on January 8, 1979.
The January 30, 1979 judgment of the Court below is repro-
duced as Appendix E, infra, pp. A60-A61. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1254(1).
QUESTION PRESENTED
This case raises the question whether constitutional and
statutory considerations require or warrant withholding a certi-
fication and bargaining order from a union which engages in
pervasive discrimination against women.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVCLVED
The pertinent provisions of the United States Constitution
and the National Labor Relations Act, as amended (61 Stat.
136, 29 U.S.C. § 151 et seg.) (the “Act”), are set forth in
Appendix F, infra, pp. A62-A64.
STATEMENT OF THE CASE
The Court of Appeals enforced a Decision and Order of the
National Labor Relations Board in which the Board ordered
Bell & Howell to bargain with Local 399 of the International
Union of Operating Engineers (“Local 399”). Both the Board
and the Court rejected Bell & Howell’s position that it should not
be forced to deal with Local 399, which engages in pervasive
discrimination against women in representing stationary engi-
neers throughout the Chicago area.
A. The Facts
On February 20, 1974, five days after Local 399 won a
representation election involving a group of Bell & Howell’s
stationary engineers at its Lincolnwood, Illinois plant, Bell &
Howell filed a motion with the Board’s Regional Director in
Chicago to disqualify Local 399 as collective bargaining repre-
sentative on the ground that it discriminates against women
regarding their employment as stationary engineers in the
Chicago area. In support of this motion, Bell & Howell offered
evidence showing that:
(1) Local 399 excludes women from membership, as
shown by the fact that it has no female officers, no
female business representatives and no female mem-
bers out of its total membership of 4,300;
(2) Local 399 exercises substantial control over oppor-
tunities for employment as stationary engineers, and
membership in Local 399 is the sine qua non to
employment as a stationary engineer in the Chicago
area. This control exists by virtue of Local 399’s 500
labor contracts with Chicago area companies covering
4,300 stationary engineers, by virtue of its president’s
position as a member of the City of Chicago Board
of Examiners for Stationary Engineers, by virtue of its
training programs for stationary engineers, and by
virtue of its contractual job referral procedure;
(3) Local 399’s bylaws on their face discourage women
from becoming members because they provide death
benefits for widows of deceased male members but not
for widowers of deceased female members; and
(4) Local 399’s group insurance program on its face dis-
courages women from becoming members because
it provides maternity benefits for “dependent wives” of
male employees but not for female employees.
4
Local 399 opposed this motion in general terms but did not
contradict any of Bell & Howell’s specific allegations. On March
$, 1974, the Regional Director transferred Bell & Howell’s
motion to the Board, and on September 20, 1974, the Board
(Chairman Miller and Member Jenkins, dissenting) issued its
Decision and Certification of Representative denying Bell
& Hewell’s motion and certifying Local 399 (App. B, pp.
A28-A36).
On October 3, 1974, Local 399 requested Bell & Howell
to commence negotiations for a labor contract, and on October
16, 1974, Bell & Howell rejected this request so that it could
obtain judicial review of the Board’s rulings. Local 399 filed
an unfair labor practice charge based on this refusal, and the
Board’s General Counsel issued a complaint alleging that Bell
& Howell was refusing to bargain with Local 399 in violation of
Sections 8(a)(1) and (5) of the Act. In its answer to the
complaint, Bell & Howell admitted that it declined to enter into
negotiations with Local 399, but asserted that it took this action
in order to obtain judicial review of the Board’s erroneous
rulings. Both the General Counsel and Local 399 moved for
summary judgment, and, on September 29, 1975, the Board
issued a Decision and Order requiring Bell & Howell to bargain
with Local 399 (App. C, pp. A37-A46).
On October 10, 1975, Bell & Howell filed its Petition for
Review with the United States Court of Appeals for the District
of Columbia Circuit, but the Board requested the Court to post-
pone the appeal process pending the Board’s reconsideration of
its decision. The Court granted this postponement, and the Board
then consolidated this case with three other cases for oral argu-
ment.* These cases became the Board’s vehicle for reconsidering
its approach to allegations of race and sex discrimination in
election cases. 7
* Murcel Manufacturing Corp., 231 NLRB 623 (1977); Handy
Andy, Inc., 228 NLRB 447 (1977); Trumbull Asphalt Company,
Inc., 230 NLRB 646 (1977).
B. The Board’s Supplemental Decision and Order
On June 24, 1977, the Board issued its Supplemental Deci-
sion and Order, finding that Bell & Howell violated Sections
8(a)(1) and (5) of the Act by refusing to bargain with Local
399, and ordering Bell & Howell to commence bargaining
and take other action (App. D, pp. A47-A59). Three opinions
were filed. The majority opinion, filed by Chairman Fanning
and Members Penello and Murphy, concluded that relevant
constitutional and statutory considerations do not require or
warrant withholding either a certification or a bargaining order
from a union which discriminates on the basis of race or sex
because a certification and a bargaining order do not make the
union’s discriminatory practices the action of the Federal Govern-
ment (App. D, pp. A47-A57). Member Walther filed a con-
curring opinion, expressing his view that allegations of race and
sex discrimination should be entertained in “certification test/
summary judgment proceedings” only when they are supported
by membership restrictions in the union’s constitution, bylaws
or other written policy statement (App. D, pp. A57-A58).
Member Jenkins dissented on the ground that by certifying a
union which discriminates on the basis of race or sex, the Board
directly participates and assists in the union’s discriminatory
representation in violation of the Constitution (App. D, pp.
A58-A59).
C. The Decision of the Court of Appeals
On January 8, 1979, the Court of Appeals affirmed the
Board’s decision. Rejecting Bell & Howell’s statutory argument,
the Court said that the Board has discretion under the Act to
withhold certification despite a union’s election victory but only
“in the most compelling circumstances, when certification would
conflict with other significant goals of the Act” (App. A,
p. Al5). Conceding that the Board has a role in promoting
the goal of eradicating employment discrimination, the Court
nevertheless concluded that withholding certification would not
6
substantially further this goal and in any event the Act’s post-
certification procedures are more effective in achieving this
goal (App. A, pp. Al5-A20). The Court also rejected Bell &
Howell’s argument that granting exclusive bargaining representa-
tive status to a unicn that discriminates against women would
violate the Fifth Amendment (App. A, p. A20). The Court
conceded that certification bestows “significant governmental
powers” on a union, and that “passive acquiescence by the Board
in union discrimination might well pose serious constitutional
questions” (App. A, pp. A21-A22). However, the Court held
that the Board does not passively acquiesce in union discrimina-
tion in light of the Board’s post-certification procedures for re-
dressing such discrimination (App. A, pp. A21-A22).
REASONS FOR GRANTING THE WRIT
I. The Decision Below Conflicts with Decisions of the Eighth
and Fifth Circuits
As a result of the decision below, a clear conflict exists be-
tween the Court of Appeals for the District of Columbia, on
one hand, and the Courts of Appeals for the Eighth and Fifth
Circuits, on the other hand, on the question presented by this
petition. The Court of Appeals for the District of Columbia
specifically acknowledged this conflict in its decision when it
referred to the Eighth Circuit’s decision in NLRB v. Mansion
House Center Management Corp., 473 F. 2d 471 (1973), and
stated that “we are compelled to disagree” with the conclusion
reached in that case (App. A, p. A2, n.1).
In Mansion House, the employer defended a refusal to bargain
complaint on the ground that the complaining union engaged
in pervasive racial discrimination. The Board rejected this de-
fense because, in its view, the supporting statistical evidence
presented by the employer was inadequate. The Court of
Appeals reversed, holding that the Boa. grant of exclusive
representative status to a discriminating union makes the Board
7
“a willing participant in the union’s discriminatory practices,”
and that judicial enforcement of the bargaining order in favor
of a discriminating union also “cannot be sanctioned” (473
F. 2d at 473). The Court summarized its holding as follows:
Federal complicity through recognition of a discriminating
union serves not only to condone the discrimination, but in
effect legitimizes and perpetuates such invidious practices.
Certainly such a degree of federal participation in the
maintenance of racially discriminatory practices violates
basic constitutional tenets. [473 F.2d at 477] |
The decision in this case also conflicts with the Fifth Circuit’s
decision in NLRB v. Sumter Plywood Corp., 535 F.2d 917
(1976), cert. denied, 429 U.S. 1092. (1977). There, although
the Court found the employer’s proffered evidence of union dis-
crimination inadequate to warrant a hearing, it specifically agreed
with the Eighth Circuit’s decision in Mansion House. As stated
by the Court:
The same considerations giving rise to the union’s duty
of fair representation support the Bekins and Mansion
House procedures whereby the Board is to consider, at the
prompting of an employer’s objection, whether a union has
shown such a “propensity to fail fairly to represent em-
ployees,” because of racial discrimination, that the union
should not be certified. We agree that this can be a proper
issue for the Board to consider in certification proceedings
or as an affirmative defense in a refusal to bargain pro-
ceeding against an employer. [535 F.2d at 930]
In sum, the Constitution and the Aci now have one meaning
in the District of Columbia and an opposite meaning in the
Eighth and Fifth Circuits. The petition should be granted to
resolve this conflict and assure a uniform application of the law
regardless of forum.
II. This Case Presents an Important Question of Federal Law
Which Should Be Decided by This Court
It is undisputed that exclusive representative status confers
upon a union “significant governmental powers” and that a
union which exercises these powers in a discriminatory manner
runs afoul of the Constitution and the Act (App. A, pp. A21-
A22). This case raises an important question of federal law:
What is the Board’s obligation under the Constitution and the
Act to assure that a union does not exercise these powers in a
discriminatory manner?
The complexity of this question is reflected not only by the
conflict which now exists in the Courts of Appeals, but also by
the difficulty which the Board itself experienced in answering it.
Initially, the approach of the Board majex'ty was to withhold
exclusive representative status from a labor organization which
discriminates on the basis of race, alienage, or national origin.
Bekins Moving & Storage Co., 211 NLRB 138 (1974). Chair-
man Miller and Member Jenkins stated their basis for this ap-
proach as follows:
Were we, as an arm of the Federal Government, to confer
the benefits of a certification upon a labor organization
which is shown to be engaging in a pattern and practice
of invidious discrimination, the power of the Federal Gov-
ernment would surely appear to be sanctioning, and indeed
furthering, the continued practice of such discrimination,
thereby: running afoul of the due process clause of the fifth
amendment. [footnote omitted] [211 NLRB at 138-39]
The Board retreated from this approach in its initial decision
in this case. Member Kennedy, who had concurred with Chair-
man Miller and Member Jenkins in Bekins, took the position
that sex discrimination, unlike race, alienage and national origin
discrimination, does not have the constitutional significance
necessary to warrant the withholding of exclusive representative
status. This position prevailed when Member Kennedy concurred
with the Bekins dissenters to form a new majority.
9
A change in Board membership brought about a reconsidera-
tion of the Bekins approach. In his Statement of Position filed in
this case and the other consolidated cases, the Board’s own
General Counsel urged the Board to adhere to its Bekins deci-
sion on this basis:
In light of this case authority, it seems clear that if the
Board were to grant representative status to a union that
practices discrimination, it could be construed as having
placed “its power . . . and prestige behind the . . . dis-
crimination” and as having granted “Federal Government
benefit and support” to such discrimination. The Consti-
tution clearly forbids this.
Disregarding this advice, the Board overruled Bekins in Handy
Andy, supra, one of the consolidated cases, and adopted the
approach which was followed in this case and affirmed by the
Court below.
Under the current approach, the Board does not consider
itself obligated by the Constitution or the Act to consider evi-
dence of a union’s race or sex discrimination until after a bar-
gaining relationship has been established and a charge of unfair
representation is filed under Section 8(b) of the Act concerning
discrimination in the established bargaining unit. However,
Section 8(b) proceedings are not a constitutionally or statu-
torily adequate remedy in cases like this where pervasive union
discrimination completely denies employment to women or
minority persons in an entire industry or craft. Since such pro-
ceedings are dependent upon a charge being filed with the
Board by some outside person, it is unlikely that they would ever
be instituted in these cases.
Thus, if a union’s discriminatory practices have prevented
women and minority persons from even acquiring the skills
necessary to qualify them for employment in a craft, they would
not relate their failure to be employed in the craft to any
specific bargaining unit and therefore would not seek redress
under Section 8(b). Moreover, a white male member of the
bargaining unit, who in a sense is a beneficiary of the union’s
10
discrimination, would have no personal interest in instituting
Section 8(b) proceedings and, in any event, he would hesitate to
expose himself to the union and peer pressure which would arise
from such a challenge. Finally, while the employer is obviously
concerned with union discriminatory practices which exclude
women or minority persons from his workforce, he might con-
sider the stability arising out of the established bargaining
relationship to outweigh his interest in launching an uncertain
and disruptive campaign against the union’s discriminatory
practices.
In view of the inadequacy of Section 8(b) proceedings as a
means for dealing with pervasive union discrimination, the
granting of exclusive representative status to a union which
engages in such discrimination renders the Board “a party” to
the discrimination within the meaning of Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961), or at least raises an
important question of federal law which should be decided by
this Court.
CONCLUSION
For these reasons, it is respectfully submitted that this peti-
tion for a writ of certiorari should be granted.
Respectfully submitted,
THEOPHIL C. KAMMHOLZ
JOHN P. JACOBY
115 South LaSalle Street
Chicago, Illinois 60603
Counsel for Petitioner
Of Counsel:
VEDDER, PRICE, KAUFMAN
& KAMMHOLZ
115 South LaSalle Street
Chicago, Illinois 60603
April, 1979.
Al
APPENDIX A
UNITED STATES COURT OF APPEALS
For the District of Columbia Circuit
No. 75-2002
BELL & HOWELL COMPANY, PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT
Loca 399, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO, INTERVENOR
Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor
Relations Board
Argued June 19, 1978
Decided January 8, 1979
John P. Jacoby, for petitioner.
Richard B. Bader, Attorney, National Labor Relations Board
with whom John S. Irving, General Counsel, Carl L. Taylor,
Associate General Counsel, Elliott Moore, Deputy Associate
General Counsel and Marion Griffin, Attorney, National Labor
Relations Board were on the brief, for respondent.
Sheldon M. Charone and Michael Fanning were on the brief,
for intervenor.
A2
Also Michael J. Bartlett entered an appearance for petitioners.
Before: BAZELON, MCGOwAN and Ross, Circuit Judges
Opinion for the Court filed by Circuit Judge BAZELON
BAZELON, Circuit Judge: Petitioner Bell & Howell Co. (Bell
& Howell) challenges an order of the National Labor Relations
Board (NLRB) requiring Bell & Howell to bargain with Local
399, Operating Engineers (Local 399) as collective bargaining
representative for Bell & Howell’s stationary engineers at its
Lincolnwood, Illinois facility.
Bell & Howell contends that it is not obligated to bargain
with Local 399 because Local 399 allegedly discriminates
against women in its membership policy and benefit plans.
Bell & Howell also challenges certain evidentiary rulings made
by the NLRB in the pre-election inquiry into the appropriateness
of the bargaining unit. We affirm the Board’s decision that Bel!
& Howell violated §§ 8(a)(5) and (1) of the Act.!
1. In NLRB v. Mansion House Center Management Co., 473
F.2d 471 (8th Cir. 1973), the court held that an employer may
introduce evidence of a union’s racially discriminatory policies as a
defense to a charge that the employer refused to bargain with the
union in violation of § 8(a)(5). The Court, noting the constitu-
tional problems that might arise should the Board make its “remedial
machinery” available to a discriminatory union, held that
the claim of racial discrimination allegedly practiced by a union
seeking recognition as a representative bargaining unit under
the act is a relevant area of inquiry for the Board when the
defense is appropriately raised before the Board upon a com-
pany’s refusal to bargain.
Id. at 474. For the reasons that appear more fully herein, we are
compelled to disagree with that conclusion.
Mansion House, and the Board’s response to that decision, has
been the subject of considerable interest. See generally, Axclrod &
Kaufman, Mansion House—Bekins—Handy Andy: The National
Labor Relations Board’s Role in Racial Discrimination Cases, 45
Geo. Wasu. L. Rev. 675 (1977); Leslie, Governmental Action and
Standing: NLRB Certification of Discriminatory Unions, 1974
Ariz. St. L. J. 35; Meltzer, The National Labor Relations Act and
Racial Discrimination: The More Remedies the Better?, 42 U. Cut.
(Footnote continued on next page.)
ee
A3
I. BACKGROUND
On April 25, 1973, Local 399 petitioned the NLRB for a
representation election for Bell & Howell’s stationary engineers
at Lincolnwood. The NLRB held hearings before a hearing
officer to determine the appropriateness of the unit. During the
course of that proceeding Bell & Howell sought production of
Local 399’s labor contracts and records of jurisdictional disputes
involving Local 399.” These documents were necessary, in Bell
(Footnote continued from preceding page.)
L. Rev. 1 (1974); Note, The Impact of De Facto Discrimination
By Unions of the Availability of NLRB Bargaining Orders, 47 S.
CaL. L. Rev. 1353 (1974); Comment, 7 Ga. L. Rev. 770 (1973);
Comment, 58 MINN. L. Rev. 335 (1973).
2. Specifically, Bell & Howell subpoened the following infor-
mation:
1. Copies of all collective bargaining agreements to which
Local 399 of the International Union of Operating Engi-
neers (““IUOE”) (including its Branch Locals 399B and
399C) is a party on the date of the issuance of this subpoena
or has been a party during the five-year period prior to the
date of the issuance of this subpoena.
2. Copies of all petitions for representation elections filed by
Local 399 of the IUOE (including its Branch Locals 399B
and 399C) with the National Labor Relations Board during
the five-year period prior to the date of the issuance of
this subpoena.
3. Copies of all agreements, except for agreements described
in Item 1 above, pursuant to or under which an employer
recognized Local 399 of the IUOE (including its Branch
Locals 399B and 399C) as the collective bargaining rep-
resentative for said employer’s employees during the five-
year period prior to the issuance of this subpoena.
4. Copies of all letters, correspondence, memoranda or other
documents or records containing or relating to demands by
Local 399 of the IUOE (including its Branch Locals 399B
and 399C) for recognition as the collective bargaining
_ representative for an employer’s employees during the five-
year period prior to the date of the issuance of this sub-
poena.
5. Copies of all letters, correspondence, memoranda or other
documents or records relating to claims, during the ten-year
period prior to the date of the issuance of this subpoena,
(Footnote continued on next page.)
A4
(Footnote continued from preceding page.)
that work should be or should have been assigned to
employees represented by Local 399 of the IUOE (includ-
ing its Branch Locals 399B and 399C) rather than to other
employees, or that work should be or should have been
assigned to other employees rather than to employees rep-
resented by Local 399 of the IUOE (including its Branch
Locals 399B and 399C).
6. Copies of all letters, correspondence, memoranda or other
documents or records relating to strikes during the ten-year
period prior to the date of the issuance of this subpoena,
involving members of Local 399 of the I[UOE (including its
Branch Locals 399B and 399C), or involving other em-
ployees at plants or other facilities where Local 399 of the
IUOE (including its Branch Locals 399B and 399C) also
represented employees at the time of said strikes.
7. Copies of all unfair labor practice charges which have been
filed with the National Labor Relations Board against Local
399 of the IUOE (including its Branch Locals 399B and
399C) under Section 8(b)(4)(D) of the National Labor
Relations Act during the ten-year period prior to the date
of the issuance of this subpoena.
8. Copies of all letters, correspondence, memoranda or other
documents or records relating to proceedings before the
National Labor Relations Board involving Local 399 of the
IUOE (including its Branch Locals 399B and 399C) under
Section 10(k) of the National Labor Relations Act during
the ten-year period prior to the date of the issuance of
this subpoena.
9. Copies of all letters, correspondence, memoranda or other
documents or records relating to any joint board, arbitra-
tion or other proceedings (except for NLRB proceedings
described in item 8 above), during the ten-year period prior
to the date of the issuance of this subpoena, involving the
adjustment of disputes whether work should be or should
have been assigned to employees represented by said Local
399 of the IUOE (including its Branch Locals 399B and
399C) or to other employees.
10. Copies of all letters, correspondence, memoranda or other
documents or records relating to apprenticeship, training or
education programs which have been in effect during the
five-year period prior to the date of the issuance of this
subpoena for employees represented by or members of
Local 399 of the IUOE (including its Branch Locals 399B” ~
and 399C).
Joint Appendix (J.A.) 44-45.
AS
& Howell’s view, to shed light on the appropriateness of the
unit.® At the request of Local 399, the Hearing Officer revoked
Bell & Howell's subpoena on the grounds that the request was
burdensome and the material irrelevant. Bell & Howell appealed
unsuccessfully to the Regional Director, and the hearing then
concluded.
After the hearing, Bell & Howell again appealed the eviden-
liary ruling to the Regional Director, who agreed to a limited
reopening of the hearing to consider additional evidence on the
appropriateness of the unit.* Bell & Howell then reissued the
subpoena to Local 399. After much procedural wrangling, Local
399 finally produced ten sample contracts and offered to permit
Bell & Howell to examine the remaining documents at Local
399’s offices. Although Bell & Howell complains that this con-
stituted “blatant refusal to comply with the subpoena,” Br. for
Bell & Howell at 8, the Regional Director held that by producing
ten contracts and making the remainder available to Bell
& Howell, the union had “sufficiently complied” with the
subpoena. Joint Appendix (J.A.) 74. The Regional Director
found that the stationary engineers were an appropriate unit.
3. Bell & Howell believed these documents were relevant to the
Board’s Mallinckrodt factors. See Mallinckrodt Chemical Works,
162 N.L.R. B. 387, 397 (1966). The Mallinckrodt factors guide
the Board in determining the appropriateness of certifying a craft
unit separately from an overall group of production and maintenance
employees. They are typically used when a craft group seeks to sever
itself from a broader collective bargaining unit that had previously
included the craft members, but also may be “useful” when there has
been no previous history of collective bargaining. See Freemont
Hotel, Inc., 168 N. L.R. B. 115, 117 (1967), and § III, infra.
4. The record was reopened to permit additional evidence on
two of the Mallinckrodt factors:
(1) The history, practice and experience of Petitioner in
representing the type of employees involved in the unit here
petitioned for.
(2) The area and industry practice regarding the represen-
tation of the type of employees involved in the unit here
petitioned for.
J. A. 48.
A6
On February 11, 1974, the NLRB denied Bell & Howell’s re-
quest for review of the Regional Director’s decision. The elec-
tion, held on February 15, 1974, resulted in seven votes for
Local 399, one against.
On February 20, 1974, Bell & Howell moved to disqualify
Local 399 from certification because the union allegedly dis-
criminates against women. While the motion was pending. the
NLRB announced its policy toward allegations of union discrim-
ination in representation proceedings in Bekins Moving & Stor-
age Co., 211 N.L.R. B. 138 (1974). In Bekins, a plurality
of the Board (Chairman Miller and Member Jenkins) suggested
that the Board could not constitutionally certify a union engaged
in invidious discrimination. Jd. at 139. The plurality therefore
interpreted § 9(c)(1) of the Labor Management Relations Act
(ILMRA),° to require an inquiry into allegations of discrimina-
tion before certification but after the union involved actually
won an election. The plurality did not enunciate what proof of
discrimination would be necessary to disqualify a union, but
suggested that not every violation of Title VII would be sufficient
grounds for denying certification. The Board left the standards
to be worked out in future adjudication.
Member Kennedy concurred in part in the plurality opinion.
He would deny certification of a union only when the union
discriminated in its membership policy on the basis of race,
alienage or national origin. Id. at 145. He would not decline
to certify when the complained-of practice was the union’s
failure to honor its duty of fair representation. Jd. Members
Fanning and Pennello dissented, arguing that the Constitution
did not require the Board to consider allegations of discrimina-
tion prior to certification, and that the Act, § 9(c)(1), affirma-
tively forbade consideration of the issue.
Shortly after the decision in Bekins, the Board issued its first
decision in this case. In Bell & Howell Co., 213 N. L. R. B. 407
(1974), the Board refused to entertain Bell & Howell’s allega-
5. 29 U.S.C. § 159(c)(1) (1976).
A7
tions of discrimination. Members Fanning and Pennello (the
dissenters in Bekins) were joined by member Kennedy, who
declined to extend the Bekins principle to allegations of discrim-
ination against women. Chairman Miller and Member Jenkins
dissented, concluding that Bell & Howell had made out a
prima facie case of discrimination under Bekins and that the
Board should therefore investigate the allegations.
In order to obtain judicial review of the NLRB’s decision®
Bell & Howell refused to bargain with Local 399. Local 399
brought unfair labor practice charges against Bell & Howell,
and the Board, relying on its decision in the certification pro-
ceeding, ultimately granted summary judgment against the com-
pany, and found that the refusal to bargain violated §§ 8(a) (5)
and (1) of the Act.’ Bell & Howell Co., 220 N. L.R. B. 881
(1975).
On December 22, 1975, the NLRB decided sua sponte to
reconsider its decision in this and three similar cases. On June
24, 1977, the NLRB issued its supplemental decision, affirming
its earlier finding that Bell & Howell had violated §§ 8(a) (5)
and (1) and ordering Bell & Howell to bargain with Local 399.
Bell & Howell Co., 230 N. L. R. B. 420 (1977). In the supple-
mental decision the Board followed the rationale of Handy Andy,
228 N. L. R. B. 447 (1977), which overruled Bekins. In Handy
6. Ordinarily, a decision to certify a union pursuant to § 9(c) (1)
is not reviewable. Boire v. Greyhound Corp., 376 U.S. 473 (1953);
McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916, 917
(D.C. Cir. 1968), cert. denied, 393 U.S. 1016 (1969). An
employer can obtain review of the Board’s decision by refusing to
bargain with the union and challenging the representation decision
in an appeal from an unfair labor practice order. /d. A limited
opportunity for direct review of the representation proceeding may
be available under Leedom v. Kyne, 358 U.S. 184 (1958), where
the Court held that the district court could entertain a challenge to
the Board’s decision to certify because the Board ignored a manda-
tory provision of the LMRA, § 9(b)(1).
7. Section 8(a)(5), 29 U.S.C. § 158(a)(5) (1976) provides,
inter alia: “It shall be an unfair labor practice for an employer .. .
to refuse to bargain collectively with the representatives of his
employees. . . .”
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Andy the Board announced it would no longer consider evi-
dence of invidious discrimination by a union prior to certifying
the union as a collective bargaining representative. The Board
held that it is not constitutionally required to consider such
evidence, and further, it is “not authorized to withhold certifica-
tion of a labor organization duly selected by a majority of the
unit emplcyees.” Jd. at 448 (emphasis added).
II. THE BOARD’s REFUSAL TO ENTERTAIN EVIDENCE OF
DISCRIMINATION BY LOCAL 399
A. Employer's Standing to Challenge Union Discrimination
Initially, we must determine whether Bell & Howell has
standing to challenge the Board’s certification of Local 399
where the challenge is based on Local 399’s alleged discrimina-
tion against women.* The Board, relying on Virginian Ry. Co.
v. System Federation 40,° contends that an employer lacks
standing to assert the constitutional rights of its employees as
a defense to the statutory obligation to bargain with the em-
ployees’ chosen representative.
The economic consequences of a bargaining order to an
employer appear sufficient to establish “injury in fact,” the
element of standing mandated by the case or controversy re-
8. In this opinion we treat interchangeably the question of
whether the NLRB may certify a discriminatory union and whether
the Board may order an employer to bargain with a discriminatory
union, once that union has been certified. This is appropriate because
the obligation to bargain stems from the certification and the certifi-
cation cannot be challenged except through a refusal to bargain. See
note 6 supra.
9. 300 U.S. 515 (1937). In Virginian Railway the Court held
that an employer could not raise the rights of its employees as a
defense to the duty to “treat with” a certified collective bargaining
representative under § 2(9) of the Railway Labor Act, 45 U.S.C.
§ 152(9) (1970), id. at 558, and that the duty was enforceable by
injunction. Jd. at 549. See Leslie, Governmental Action and Stand-
ing: NLRB eee of Discriminatory Unions, 1974 Ariz. Sr.
L. J. 35, 38-47.
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quirement of Article III.’° An employer who has been found
guilty of an unfair labor practice and has been ordered to bargain
is also a “person aggrieved” within the meaning of § 10(f) of
the Act.'! Therefore, the employer is also well within the ambit
of the statutory authorization to seek review.’”
Normally, however, one who properly invokes the jurisdic-
tion of a federal court “has standing to seek redress for injuries
done him, but may not seek redress for injuries to others.”
Moose Lodge No. 107 vy. Irvis, 407 U.S. 163, 166 (1972)."
10. See Craig v. Boren, 429 U.S. 190, 194-195 (1976); Sierra
Club v. Morton, 405 U.S. 727, 738 (1972); Retail Clerks Union
1059 v. NLRB, 348 F. 2d 369, 370 (D. C. Cir. 1965); Flast v.
Cohen, 392 U. S. 83, 99-101 (1968).
The gist of the question of standing is when the party seeking
relief has “alleged such a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens
the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.”
Id. at 99, quoting Baker v. Carr, 369 U.S. 186, 204 (1962). Stand-
ing thus looks to the appropriateness of the party to request adjudi-
cation of the issue. This suggests that the question of the employer’s
standing (in terms of “injury in fact”) is inapplicable where the
Board has cross-petitioned for enforcement of its order. See 3 K.
Davis, ADMINISTRATIVE LAW TREATISE § 22.07 at 236-239. (1958).
ll. 29 U.S.C. § 160(f) (1976).
12. The fact that the Board has entered an order against Bell &
Howell may in itself be sufficient to confer standing on the employer.
“When the Board enters a final order against the charged party, it is
clear that the phrase ‘[a]ny person aggrieved’ in § 10(f) enables him
to seek immediate review in the appropriate Court of Appeals.”
U. A. W. Local 283 v. Scofield, 382 U. S. 205, 210 (1965). Cer-
tainly an employer meets a second, nonconstitutional standing
requirement—that the interest the employer seeks to protect be
“arguably within the zone of interests to be protected or regulated
by the statute. . . .” Association of Data Processing Service Organi-
zations v. Camp, 397 U.S. 150, 153 (1970); cf. Barlow v. Collins,
397 U.S. 159, 167 (Brennan, J., concurring in the result and
dissenting).
13. This issue is typically called the right to assert “constitu-
tional jus tertii.’ See generally, Sedler, Standing to Assert Constitu-
tional Jus Tertii in the Supreme Court, 71 YALE L. J. 599 (1962);
Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L. REv.
423 (1974).
Al0
In challenging Local 399’s certification, Bell & Howell did not
allege that Local 399’s discriminatory policies have or will
cause any harm to Bell & Howell (e.g., by preventing Bell &
Howell from hiring female stationary engineers or causing Bell
& Howell to violate statutes prohibiting discrimination against
women. ) !*
The barrier against asserting the rights of third parties does
not appear to be rooted in Article III itself, but rather is a
prudential doctrine designed to limit unnecessary decisions of
constitutional questions.’° The rule against allowing a party to
assert the constitutional rights of third persons has been relaxed
in certain situations, particularly where the third party’s interest
might otherwise go unprotected."®
14. In its reply brief to this court Bell & Howell raises for the
first time the spectre of “interfer[ence] with [the employer’s] ability
to satisfy his obligations under the myriad of federal and state equal
employment opportunity statutes.” Reply Br. for Bell & Howell at 5.
Bell & Howell does not specify how certification will interfere with
its equal employment obligations, particularly in view of the fact
that the union does not control the employer’s hiring through an
exclusive referral system. See Br. for Bell & Howell in case No.
13-RC-13022, filed July 20, 1973 (challenging the hearing officer’s
rulings). In its original brief, the employer relied on the fact that it
was “aggrieved” by the order and urged that since the issue has been
“vigorously arid cogently argued,” the court should not wait for an
employee challenge. Br. for Bell & Howell at 29 n. 19, citing Craig
v. Boren, 429 U.S. at 192-197 in which the Court allowed a vendor
to challenge the constitutionality of an Oklahoma law restricting sale
of “3.2% beer” to males over 21 but permitting its purchase by
females over 18.
15. [L]imitations on a litigant’s assertion of jus tertii are not
constitutionally mandated, but rather stem form a salutary
“rule of self-restraint” designed to minimize unwarranted
intervention into controversies where the applicable consti-
tutional questions are ill-defined and speculative. See, e.g.,
Barrows v. Jackson, 346 U.S. 249, 255, 257 (1953); see
also Singleton v. Wulff, 428 U.S. 106, 123-124 (1976)
(Powell, J., dissenting).
Craig v. Boren, 429 U.S. at 193.
16. Thus the rule against asserting third party’s constitutional
rights has been relaxed when those rights would be “diluted or
adversely affected” if the constitutional challenge should fail and the
(Footnote continued on next page.)
All
Whether in this case the interest would otherwise go unpro-
tected depends on precisely how ‘he “interest” at stake is defined.
If the interest is in eliminating the union’s discriminatory prac-
tices, there are alternative means of achieving this goal under
both the LMRA (once the union has been certified) and Title
VII,” and under both provisions the action can be brought by
the victim of discrimination. If, on the other hand, the interest
is in preventing certification of a discriminatory union, there
may be no adequate alternative to allowing the employer to
raise the issue. The right of a dissenting unit member, or an
individual outside the unit, to intervene in a representation pro-
ceeding in order to raise the discrimination issue is question-
able.'® Moreover, even if such an individual could intervene,
the nonreviewability of certification decisions might insulate
from judicial review any Board decision in favor of the union.”
(Footnote continued from preceding page.)
statute or policy remain in effect pending a challenge by one whose
rights are affected. Craig v. Boren, 429 U.S. at 195, quoting
Griswold v. Connecticut, 381 U.S. 479, 481 (1965).
17. Remedies under the LMRA for breach of the statutory duty
of fair representation are discussed at note 33 infra. Title VII, 42
U.S.C. § 2000e-2(c) (1976), prohibits a union from discriminating
in its membership and prohibits any other form of discrimination
that would deprive an employee of employment opportunities or
otherwise affect an employee’s status. A union that violates these
provisions may be enjoined and ordered to take appropriate remedial
action. Such suits may be brought by the Equal Employment
Opportunity Commission (EEOC) or by a person aggrieved by the
union’s discriminatory practices. 42 U.S.C. § 2000e-5(f) and (g)
(1976).
18. Section 11194.3 of the NLRB Case Handling Manual,
Pt. II, Representation Proceedings, Oct. 1975 (“Tests for granting
or denying intervention”) provides, inter alia: “Motions to intervene
made by ‘employees’ or ‘employees’ committees’ not purporting to
be labor organizations, should be denied.” In contrast, any person
may file an unfair labor practice charge. See NLRB, Rules &
Regulations § 102.9, 29 C.F. R. § 102.9 (1977). The complainant
is entitled to participate in the unfair labor practice proceeding as a
party. 7d. § 102.8.
19. We need not decide whether an individual discriminated
against by the union could bring an action in district court challeng-
ing the certification under Leedom v. Kyne, 358 U.S. 184 (1958).
See note 6 supra.
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We think certification in itself is sufficiently important that
the constitutionality of the practice announced in Handy Andy
should not be insulated from review. Our conclusion is rein-
forced by a concern that if the Board’s certification of a dis-
criminatory union violates the Fifth Amendment, then our en-
forcement of a bargaining order with such a union might
equally violate the Fifth Amendment. We are mindful of the
Court’s observation in Shelley v. Kraemer, 334 U.S. 1, 22
(1948): “[t]he Constitution confers upon no individual the
right to demand action by the State which results in the denial
of equal protection of the laws to other individuals.” We must
therefore decide whether granting enforcement of this bargaining
order would deny equal protection to those who are the victims
of union discrimination, particularly where those persons might
otherwise be precluded from challenging the constitutionality
of the order on their own behalf.
We thus conclude that Bell & Howell has standing to raise
the constitutional rights of victims of discrimination in this case.
Although Virginian Railway implies a contrary result, that case
was decided prior to a series of cases elaborating the “jus tertii”
doctrine” and also preceded the Supreme Court decisions hold-
20. The origin of the prudential doctrine of jus tertii is not
altogether clear, but the first significant elaboration was not until
Tileston v. Ullman, 318 U.S. 44, 46 (1943). In Tileston, the court
held that a doctor lacked standing to challenge a Connecticut law
prohibiting the use of contraceptives or giving assistance in their use
because there was “no basis on which we can say that he has
standing to seek an adjudication of his patient’s constitutional rights
to life which they do not assert on their own behalf.” Jd. Tileston
may also be read, however, as denying standing to assert jus tertii
only because the physician himself failed to allege any injury in fact.
See Note, supra note 13 at 430 and n. 44.
Only with Barrows v. Jackson, 346 U.S. 249 (1953), was there
an explicit recognition of the prudential nature of the jus tertii rule,
applicable even where the plaintiff establishes injury in fact. Although
the Court in Barrows cited Justice Brandeis’ elaboration of the
“passive virtues” in Ashwander v. T. V. A., 297 U.S. 288, 346-348
(1936) (Brandeis J., concurring), the prudential doctrine of jus
tertii elaborated in Barrows is not included in Justice Brandeis’
(Footnote continued on next page.)
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ing that court enforcement of private discrimination constitutes
state action in violation of the Fourteenth Amendment.”
B. Section 9(c\1) of the LMRA
Section 9(c)(1) of the LMRA provides, inter alia: “If the
Board finds . . . [that] a question of representation exists, it
shall direct an election by secret ballot and shall certify the
results thereof.”*? Although, by its terms, § 9(c)(1) is manda-
tory, the Board may nonetheless deny certification to'a victorious
union in certain limited circumstances. The Board most often
a
(Footnote continued from preceding page.)
exposition. The only discussion of standing to assert jus tertii in
Ashwander is in connection with cases where the plaintiffs alleged no
injury in fact. Id. at 348.
21. See, e.g., Barrows v. Jackson, 346 U.S. 249 (1953);
Shelley v. Kraemer, 334 U.S. 1 (1948) cf. Hurd v. Hodge, 334
U.S. 24 (1948). The fact that Virginia Railway was cited with
apparent approval in Moose Lodge, 407 U.S. at 166, does not
require a different result, since in Moose Lodge there was no barrier
to assertion of the constitutional right by one actually discriminated
against.
22. 29 U.S.C. § 159(c)(1) (1976) (emphasis added). The
provisions of § 9(c)(1) were added by the Taft-Hartley Amend-
ments of 1947, 61 Stat. 143 (1947). The requirement that the
Board “shall certify” election results was approved in both the
House and Senate versions and was adopted without debate or
comment.
Prior to 1947, the Board was given much broader discretion in
deciding whether to certify a union on the basis of election results.
The Wagner Act, 49 Stat. 453 (1935) provided, inter alia:
Whenever a question affecting commerce arises concerning
the representation of employees, the Board may investigate such
controversy and certify to the parties, in writing, the name or
names of the representatives that have been designgted or
selected. In any such investigation, the Board shall provide for
an appropriate hearing upon due notice, either in conjunction
with a proceeding under section 10 or otherwise, and may take
a secret ballot of employees, or utilize any other suitable method
to ascertain such representatives. (Emphasis added. )
The decision to hold an election, and to utilize the results of such
an election were discretionary with the Board. See Inland Empire
Council v. Millis, 325 U.S. 697, 706-707 (1945).
qrewe CR 0 ere eee ee
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exercises this authority to deny certification when the electoral
process itself is tainted.“ The Board may also decline to certify
a union that has interests that conflict with those of the em-
ployees in the unit the union seeks to represent.** These de-
cisions illustrate that the mandatory language of § 9(c)(1)
has been, and must be read in harmony with the basic purposes
of the LMRA. Where certification would be inconsistent with
the dominant purposes of the Act, the Board has the discretion
to deny it, despite the union’s electoral victory.”°
Although the statute does not in all cases require certifica-
tion of a union chosen in an election by a majority of employees,
the purpose of §§ 7 & 9 of the LMRA, facilitating employee
self-determination, is best served by giving broad effect to em-
ployees’ choice of a collective bargaining representative. To
promote this policy, Congress has given the NLRB authority
to conduct elections and to assure the prompt resolution of
disputes concerning representation. Congress’ concern that repre-
sentation questions be resolved speedily is reflected prominently
23. Great Atlantic and Pacific Tea Co., 101 NLRB 1118, 1120
(1952). Refusal to certify when there are serious flaws in the
electoral process is consistent with the primary purpose of the
electoral machinery established by § 9, namely, to determine the true
wishes of a majority in the unit. See NLRB v. A. J. Tower Co., 329
U.S. 324, 330-31 (1946) (decided under the Wagner Act). In
Handy Andy the Board recognized that denying certification to a
victorious union is appropriate when necessary to protect the Board’s
processes. 228 N. L.R. B. at 454.
24. R&M Kaufmann v. NLRB, 471 F. 2d 301 (7th Cir. 1972),
cert. denied, 411 U.S. 906 (1973); NLRB v. David Buttrick Co.,
361 F.2d 300 (lst Cir. 1966). See Bausch & Lomb Optical Co.,
108 N. L. R. B. 1555 (1954); Bambury Fashions, Inc., 179
e L. > B. 447 (1969). See generally, Meltzer, supra note 1 at
n. 58.
25. It is a “familiar rule, that a thing may be within the letter of
the statute and yet not within the statute, because not within
its spirit, nor within the intention of its makers.” Holy Trinity
Church v. United States, 143 U. S. 457, 459. That principle
has particular application in the construction of labor legisla-
Gi...
National Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612,
619 (1967).
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in its decision to limit direct judicial review of the Board’s
decisions in representation proceedings.** Permitting an em-
ployer to inject allegations of discrimination into a representa-
tion proceeding would tend to undermine this purpose of the
Act. Often an employer's allegations will require the Board
to conduct extensive investigations.** While these inquiries are
carried out, the employees’ choice of a representative is
thwarted, and the delay may prove an effective tactic for eroding
the union’s support in the unit.** Moreover, industrial strife may
be exacerbated by inducing unions to forego the Board's elec-
toral machinery in favor of recognitional picketing and other
forms of economic pressure.
A refusal to certify a union chosen by a majority in the unit
thus can be justified only in the most compelling circumstances,
when certification would conflict with other significant goals
of the Act. In this case Bell & Howell argues that the vital
national commitment to eradicate employment discrimination
justifies denying certification to Local 399.
Although other federal agencies have primary responsibilities
for carrying out the national anti-discrimination policy, Bell
& Howell correctly observes that the Board too has a role in
promoting this goal.*® The Board already implements this policy
26. The legislative history is reviewed in Leedom v. Kyne, 358
U.S. at 191-194 (Brennan, J., dissenting). See notes 6 and 19
supra.
27. Professor Meltzer observes that claims of discrimination are
likely to pose “complex and time consuming issues,” because in most
instances Title VII has eliminated the more obvious and explicit
forms of discrimination, such as discriminatory union constitutions
or collective bargaining agreements. Meltzer, supra note 1 at 14.
28. See Meltzer, supra note 1 at 15. Cf. M. SoveRN, LEGAL
RESTRAINTS OF RACIAL DISCRIMINATION IN EMPLOYMENT, Ch. 6
at 159 (1966).
29. Plainly, national labor policy embodies the principles of
nondiscrimination as a matter of highest priority, Alexander
v. Gardner-Denver Co., 415 U.S. 36, 47 (1974), and it is a
commonplace that we must construe the NLRA in light of
the broad national labor policy of which it is a part.
(Footnote continued on next page.)
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as an aspect of enforcing the union’s statutory duty of fair
representation.*® A union violates its duty of fair representation
when it takes advantage of its monopoly position as exclusive
bargaining representative to discriminate invidiously against
employees or potential employees on the basis of race or sex.*"
Breach of this duty may violate §$ 8(b)(1)(A), b(2) and
(Footnote continued from preceding page.)
Emporium Capwell Co. v. Western Addition Community Organiza-
tion, 420 U.S. 50, 66 (1975).
_ In NAACP v. FPC, 425 U.S. 662, 665 (1976), the Court
indicated that an agency’s responsibility to carry out the national
policy against invidious discrimination must be determined in light
of the purposes underlying the creation of the agency. The primary
purpose o the LMRA was not, and is not, the eradication of dis-
crimination in employment. See Axelrod & Kaufman, supra note 1
at 682-688 (discussing legislative history); compare Title VII, 42
U.S.C. § 2000e (1976).
However, in prohibiting union discrimination or union induced
employer discrimination, the Act clearly reflects a concern that
unions not use their power of exclusive representation to shut
individuals out of the workplace based upon race or sex. Thus, while
not a dominant purpose of the LMRA, the Board’s role in combat-
ting union discrimination is far greater than the role assigned to the
Federal Power Commission (now the Federal Energy Regulatory
Commission).
30. The Court first recognized the statutory duty of fair repre-
sentation under the Railway Labor Act in Steele v. Louisville &
Nashville R. R., 323 U.S. 192 (1944), but the doctrine was soon
applied to the NLRB. See Wallace Co. v. NLRB, 323 U.S. 248,
255-56 (1944); Syres v. Oil Workers Local "23, 350 U. S. 892
(1956), rev’g per curiam, 223 F.2d 739 (Sth Cir. 1955). In its
most general terms the duty of fair representation requires an
exclusive bargaining representative to bargain in good faith for the
interest of all the members of the unit. Humphrey v. Moore, 375
U.S. 335, 342 (1964). See H. WELLINGTON, LABOR AND THE
re Process 129-84 (1968); M. SoVERN, supra note 28 at
31. Syres v. Oil Workers Local 23, 350 U. S. 892 (1955)
(racial discrimination); Peterson v. Rath Packing Co., 461 F. 2d
312 (8th Cir. 1972) (sex discrimination).
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b(3) of the Act,®* and subjects the offending union to Board-
imposed sanctions** as well as private causes of action.**
It is by no means certain that the interpretation of the LMRA
urged by Bell & Howell would substantially further anti-dis-
crimination goals in a manner consistent with the other policies
of the LMRA.” First, denying certification or withholding a
bargaining order from a discriminatory union may be an in-
effective remedy for union discrimination. These sanctions will
have no effect on unions that are strong enough to establish
collective bargaining relationships with employers without re-
course to the Board.
Second, these sanctions are at odds with the remedial focus
of the Board’s authority.** At best, denying certification or with-
32. 29U.S.C. §§ 158(b)(1)(A), (b)(2) and (b) (3) (1976).
See Miranda Fuel Co., 140 N. L. R. B. 181, 185-87 (1962), enforc-
ment denied, 326 F. 2d 172 (2nd Cir. 1963); Independent Metal
Workers (Hughes Tool Co.), 147 N. L. R. B. 1573 (1964). This
circuit has held that breach of the duty of fair representation violates
§ 8(b)(1)(A). Truck Drivers Local 568 v. NLRB, 379 F. 2d 137
(D. C. Cir. 1967); see also Local 12, Rubber Workers v. NLRB,
368 F.2d 12 (Sth Cir. 1966), enforcing 150 N.L.R.B. 312
(1964), cert. denied, 389 U.S. 837 (1967). Employer participation
in union discrimination may also be an unfair labor practice. Miranda
Fuel Co., 140 N. L. R. B. at 185-186.
33. A union that violates the duty of fair representation may be
decertified. Hughes Tool Co., 104 N. L. R. B. 318, 325-29 (1953);
Pioneer Bus Co., 140 N. L. R. B. 54-55 (1962); Local 1, Independ-
ent Metal Workers (Hughes Tool Co.), 147 N.L.R.B. 1573
(1964). The union may also be subject to a cease and desist order
for committing an unfair labor practice. Miranda Fuel Co., 140
N.L.R.B. 181; United Rubber Workers v. NLRB, 368 F. 2d
at 24.
34. Vaca v. Sipes, 386 U.S. 171 (1967). In Vaca the Court
assumed, but did not decide, that breach of the duty of fair repre-
sentation is an unfair labor practice. Jd. at 186.
35. Here, as in Emporium Capwell, we are asked to interpret the
Act to provide “a right to short-circuit orderly, established processes
for eliminating discrimination in employment. . . .” 420 U.S. at 70.
The efficacy of the proposed remedy is thus relevant to interpreting
the statute. Jd. at 66-69.
36. The Board’s powers are remedial, not punitive, and the
Board may not justify an order solely on the ground that it will
(Footnote continued on next page.)
Al18
holding a bargaining order will prevent future discrimination in
the unit that the union seeks to represent. That sanction pro-
vides no remedy for those who are already victims of the union’s
discrimination. Yet, it is well settled that the Board’s principal
remedial power is to “make whole” employees who have been
injured by violations of the LMRA.*"
Finally, to give the Board responsibility for investigating
allegations of past union discrimination that occurred outside
the unit for which. the union seeks certification would unneces-
sarily duplicate the functions of the EEOC. The broader scope
of the EEOC’s investigative and remedial authority, its exper-
tise in detecting subtle and complex forms of discrimination,
and its single-purpose anti-discrimination mission combine to
make the EEOC a preferable vehicle for eliminating union dis-
crimination.**
In contrast to denial of certification before the union becomes
exclusive bargaining representative, sanctions based on violations
of the duty of fair representation are more likely to be effective
in providing a remedy for victims of discrimination, in a man-
ner more consonant with the other underlying policies of the
LMRA. The duty of fair representation applies to all exclusive
bargaining representatives, not simply to those who use the
(Footnote continued from preceding page.)
deter future violations of the Act. Republic Steel Co. v. NLRB
311 U.S. 7, 12 (1940). .
The Board has broad discretion to adapt its remedies to the
needs of particular situations so that “the victims of discrimina-
tion” may be treated fairly. But the power of the Board “to
command affirmative action is remedial, not punitive, and is to
be exercised in aid of the Board’s authority to restrain violations
and as a means of removing or avoiding the consequences of
violation where those consequences are of a kind to thwart the
purposes of the Act.”
Local 60, United Brotherhood of Carpenters v. NLRB, 365 U.S.
651, 655 (1961) (citations omitted).
37. Republic Steel, 311 U.S. at 10-12.
38. See Note, The Impact of De Facto Discrimination, supra
note | at 1384-85.
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Board’s electoral or remedial machinery. Complaints that the
union has violated its duty of fair representation are more likely
to be brought by the individuals who are the victims of dis-
crimination. This appropriately focuses the Board’s inquiry on
the union’s conduct in a particular bargaining unit, easing the
Board’s fact-finding activities. When the complaint is brought
by a victim of discrimination, the Board can tailor its order to
redress specific instances of discrimination, making. the victims
whole, and, at the same time, providing more protection for the
employees’ right of self-determination.*” If remedies for dis-
crimination are imposed only after the collective bargaining re-
lationship is established, the employer cannot use allegations of
discrimination as a pretext to frustrate or delay the employees’
right to select their representative.
In sum, we conclude that nothing in the LMRA, interpreted
in light of the purposes of the Act, requires the NLRB to con-
sider allegations of discrimination prior to certifying a victorious
union, at least where the proffered evidence of discrimination
39. As Member Walther observed in Murcel Manufacturing Co.,
231 N.L.R.B. No. 80, 97 L.R.R.M. 153, 154 (1977) (one of
the companion cases to Bell & Howell)
[A]n 8(b)(1)(A) proceeding allows for the tailoring of a
remedy to fit the nature of the discrimination found. The with-
holding of an otherwise appropriate 8(a)(5) remedial bargain-
ing order is a relatively drastic remedy which completely pre-
cludes the establishment of a bargaining relationship. . . .
Proceedings under Section 8(b), on the other hand, offer an
opportunity to inject some remedial sensitivity into this area. In
many situations a cease-and-desist order coupled with an
affirmative make-whole obligation will provide a completely
adequate remedy. In cases where the discrimination is more
pervasive, a revocation of the union’s certification may well be
the only appropriate remedy. The point is, however, that this
flexibility can only be attained through an 8(b) proceeding.
In Murcel the Board declined to entertain allegations of union race
and sex discrimination as a defense to a § 8(a)(5) charge against
the employer.
A20
relates to past union misconduct outside the bargaining unit that
the union seeks to represent.*”
C. Constitutional Requirements
Bell & Howell argues that granting exclusive bargaining repre-
sentative status to a union that discriminates against women
violates the Fifth Amendment, and urges that we interpret
the Act to avoid what Bell & Howell views as an unconstitu-
tional result.’ We reject this argument, concluding that at least
under the facts of this case, the Board’s decision not to inquire
further into Bell & Howell’s allegations docs not violate the
Fifth Amendment.
It is clear that the Fifth Amendment’s proscription” is not
limited to discrimination initiated by the government. Govern-
40. In NLRB v. Sumter Plywood, 535 F. 2d 917, 931 (Sth Cir.
1976), cert. denied, 429 U.S. 1092 (1977) the court indicated that
it would deny enforcement of a bargaining order on behalf of an
allegedly discriminatory union ‘‘only when the employer has proffered
specific evidence sufficient to demonstrate a pattern of racially dis-
criminatory behavior by the Union which would support a finding of
a definite propensity for racially unfair representation.” (Emphasis
added.) In that case the employer offered evidence of a racially
oriented campaign that excluded almost all whites. The Board
declined to consider that evidence as a justification for the employer’s
refusal to bargain. The court affirmed, holding that the employer
failed to establish a prima facie case that would warrant a hearing.
See also NLRB v. Bancroft Manufacturing Co., 516 F.2d 436,
446-47 (Sth Cir. 1975), cert. denied, 424 U.S. 914 (1976) (em-
ployer not entitled to hearing where the employer offered no evidence
of discrimination by the local union in question).
The approach in Sumter Plywood is not necessarily inconsistent
with that which we adopt today, since we do not decide whether the
Board could constitutionally exclude evidence that establishes the
union’s intention to discriminate in the future in the unit for which
the union secks certification. See note 46, infra.
41. This is the approach adopted by the Eighth Circuit in
Mansion House. See note 1 supra.
42. The Fifth Amendment proscribes discrimination at least
insofar as the discrimination is “so unjustifiable as to be violative of
due process.” Bolling v. Sharpe, 347 U. S. 497, 499 (1954). See
Schneider v. Rusk, 377 U.S. 163, 168 (1964). In light of our
(Footnote continued on next page.)
A21
mental actions which “authorize” or “encourage” private dis-
crimination are equally proscribed. Reitman v. Mulkey, 387
U.S. 369, 375-76 (1967). Indeed, where the state is “sig-
nificantly involved” with invidious discrimination, that discrimi-
nation comes within the ban of the Fifth Amendment. /d. at
380, Burton v. Wilmington Parking Authority, 365 U.S. 715,
722 (1961).
These same cases establish that the Board’s actions here do
not constitute authorization or encouragement of discrimination.
In Burton, the public Parking Authority violated the Fourteenth
Amendment not by leasing to a restaurant owner who had dis-
criminated in the past, but rather by its failure to “affirmatively
require [] [the restaurant] to discharge the responsibilities under
the Fourteenth Amendment imposed upon the private enterprise
as a consequence of state participation.” Jd. at 725. Moreover,
the restaurant owner became bound not to discriminate only
after he became “significantly involved” with the public
Authority.
Here the effect of certification is to achieve precisely what
was lacking in Burton, the imposition of an affirmative obliga-
tion on the private association not to discriminate. Far from
authorizing and encouraging discrimination, certification sub-
jects the union to additional sanctions for any future discrimina-
tion.**
The Board’s decision to address claims of discrimination after
certification thus seems to accord well with the relevant con-
stitutional considerations. Once certified, a union is invested
(Footnote continued from preceding page.)
disposition of this case, we have no occasion to decide whether the
Fifth Amendment creates a different standard for classifications
based on sex than for those based on race, or national origin.
43. These sanctions apply not only to unions that are certified
under § 9(c), but more generally to any union that is recognized as
an exclusive bargaining representative. See TAN 28-32.
A22
with significant governmental powers,"* and passive acquiescence
by the Board in union discrimination might well pose serious
constitutional questions. Both the Court and the Board have
avoided these difficulties by interpreting the Act to prohibit
such discrimination,’® and by providing a wide variety of sanc-
tions to enforce the prohibition.
Thus, when the only evidence of discrimination proffered is
evidence of a union’s past discrimination outside the unit in
question, the NLRB does not violate the Fifth Amendment by
extending certification to the union without an inquiry into
the alleged discrimination.*®
44. “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 & Nashville R. R. Co., 323 U.S. at 202. Certifi-
cation provides a union with several benefits in addition to the right
to act as the exclusive representative. Under the one year rule the
employer is obligated to bargain with the union elected by the unit
for one year after the election, during which time no rival union
may file for an election in the unit. Brooks v. NLRB, 348 U.S. 96,
104 (1954). The contract bar rule extends the protection against
challenges by a rival union for the life of a collective bargaining
agreement up to a maximum of three years. General Cable Co.,
139 N.L.R.B. 1123 (1962); Deluxe Metal Furniture Co., 121
N. L. R. B. 995, 998-1004 (1958). The Board has indicated that it
will deny the benefit of the contract bar rule to a racially discrimi-
nating union. Pioneer Bus Co., 140 N. L.R. B. 54, 55 (1962); ef.
Pittsburgh Plate Glass Co., 111 N.L.R.B. 1210, 1213 (1955).
However, this sanction appears applicable only when the unlawful
discrimination appears on the face of the contract. See St. Louis
Cordage Mills, 168 N. L. R. B. 135 (1967).
45. See Steele v. Louisville & Nashville R.R., 323 U.S. 192
(1944). Cf. id. at 208-09 (Murphy, J., concurring) (concluding
that discrimination by a union that is an exclusive bargaining agent
would violate the Fifth Amendment).
46. We do not decide at this time whether a different result is
required where the union’s constitution or by-laws, or explicit
conduct in a representation election, establish that the union will
discriminate in the unit in question. See Handy Andy, 228 N. L. R. B.
at 467 (Member Walther, concurring) :
My colleagues in the majority note that “we have and will
continue to consider [in a representation proceeding] the impact
(Footnote continued on next page.)
A23
III. DENIAL OF A FAIR HEARING
Bell & Howell also contends that certain evidentiary rulings,
limiting the company’s right to present evidence on the Mal-
linckrodt factors, deprived the company of a fair hearing.*? The
(Footnote continued from preceding page.)
of unlawful discrimination where such consideration is required
to preserve the integrity of the Board’s own processes.” To the
instances which they cite, I would add yet another: instances in
which it can be established through reference to a petitioner's
constitution, bylaws, or other written statement of policy, that
the petitioner-——not an affiliated organization or sister local—
restricts access to membership on the basis of race, alienage,
national origin, or sex. Should such discrimination be found,
I would disqualify the petitioner from access to our clection
machinery until it can establish that the offensive practices have
been eliminated.
See also Bell & Howell, 230 N. L. R. B. at 424 (Member Walther,
concurring).
The Board has left open the possibility that in appropriate cases
it can and will consider this evidence, see Handy Andy, 228
N.L.R. B. at 454, and nothing in our opinion decides that the
NLRB is precluded from considering such evidence. See § II, B,
supra. Bell & Howell has not alleged that the local’s by-laws exclude
women, nor that the union in its campaign promised to discriminate
if selected as exclusive bargaining representative. The only evidence
of discrimination cited by Bell & Howell in Local 399’s governing
instruments is the provision of maternity benefits to “dependent
wives” but not “female employees,” and the provision of a death
benefit to “widows” but not “widowers.”
Bell & Howell offered no evidence that “widowers” or “female
employees” had or would in fact be denied such benefits discrimina-
torily (though such a showing would presumably be difficult if in
fact the union has no female employees). It may be that the provi-
sions of the benefit plans would be interpreted in a neutral fashion.
In any event, the Board provides adequate opportunities to challenge
these provisions after certification (as well as through the Civil
Rights Act), if the union in fact discriminates in the provision
of benefits.
47. - Specifically, Bell & Howell objects to
1) The Regional Director’s decision to limit the reopened hearing
to two of the Mallinckrodt factors;
2) The Hearing Officer’s limitation of the cross-examination of
Local 399’s President, Mr. Wren;
(Footnote continued on next page.)
A24
Mallinckrodt factors are primarily concerned with the appro-
priateness of carving out a unit of craft workers from a pre-
viously established, collective bargaining unit.** Their relevance
is diminished where, as here, there is no previous history of
collective bargaining on a broader basis. The Regional Direc-
tor’s decision to reopen the hearing permitted the company to
(Footnote continued from preceding page.)
3) The Regional Director’s finding that producing a sample of
Local 399’s contracts constituted sufficient compliance with Bell &
Howell’s subpoena.
Taken together, Bell & Howell argues that these rulings prevented
it from producing relevant evidence in the representation proceeding
and therefore denied it due process.
48. In Mallinckrodt, 162 N. L.R.B. at 197, the Board enumer-
ated six factors that it deemed relevant to determining whether a
craft unit should be severed from a broader bargaining unit:
1. Whether or not the proposed unit consists of a distinct
and homogeneous group of skilled journeymen craftsmen per-
forming the functions of their craft on a non repetitive basis, or
of employees constituting a functionally distinct department,
working in trades or occupations for which a tradition of
separate representation exists.
2. The history of collective bargaining of the employees
sought and at the plant involved, and at other plants of the
employer, with emphasis on whether the existing patterns of
bargaining are productive of stability in labor relations, and
whether such stability will be unduly disrupted by the destruc-
tion of the existing patterns of representation.
3. The extent to which the employees in the proposed unit
have established and maintained their separate identity during
the period of inclusion in a broader unit, and the extent of
their participation or lack of participation in the establishment
and maintenance of the existing pattern of representation and
the prior opportunities, if any, afforded them to obtain separate
representation.
4. The history and pattern of collective bargaining in the
industry involved.
5. The degree of integration of the employer’s production
processes, including the extent to which the continued normal
operation of the production processes is dependent upon the
performance of the assigned functions of the employees in the
proposed unit.
6. The qualifications of the union seeking to “carve out” a
separate unit, including that Union’s experience in representing
employees like those involved in the severance action.
A25
present evidence on two of the factors,*® and the third factor is
irrelevant in the absence of a prior history of collective bargain-
ing. Moreover, Bell & Howell has failed to allege or prove any
prejudice from the evidentiary rulings. Specifically, Bell &
Howell does not allege that Local 399 lacks history, practice
and experience in representing employees like those at Lincoln-
wood, nor that the area and industry practice does not include
separate units such as that at Lincolnwood. Rather, the em-
ployer offered to prove only that different representation pat-
terns prevail at some locations.°® The Regional Director also
49. See note 4, supra. Bell & Howell also sought to introduce
evidence on the second factor listed in Mallinckrodt, see note 48,
supra. That factor is plainly irrelevant where there is no history of
bargaining on a broader basis. Bell & Howell implicitly recognizes
.this fact, and attempts to recast the second factor as “the effect
which a separate unit would have on the stability of the employer’s
industrial relations.” J. A. 53. This characterization misconccives the
point of the Mallinckrodt factors, which are concerned with the
harms and benefits of carving out a separaie group as that decision
affects employees, not employers.
50. 3. The employer believes that the subpoenaed documents,
together with the testimony of Petitioner’s President, Richard T.
Wren, will prove that separate units of the type of employees
involved in the unit here petitioned for are not the area and
industry practice. Specifically, the Employer believes that the
evidence will show that
(a) at some locations where Petitioner represents sta-
tionary engineers, the overall groups of powerhouse
or boiler room employees are divided into two collec-
tive bargaining units, one represented by Petitioner
and the other represented by Local 7, International
Brotherhood of Firemen and Oilers.
(b) at some locations where Petitioner represents sta-
tionary engineers, the represented employees perform
no work on air conditioning equipment, and this work
is performed by employees represented by another
labor organization or by unrepresented employees.
(c) at some locations where Petitioner represents sta-
tionary engineers, Petitioner also represents as part of
the same unit employees performing other main-
tenance functions.
J. A. 68-69. In his Decision and Direction of Election, the Regional
Director observed (J. A. 76-77):
(Footnote continued on next page.)
A26
recognized the mixed pattern of representation and Bell &
Howell does not contend that the finding was erroneous. There-
fore we conclude that Bell & Howell was provided an ample
opportunity to present relevant evidence on the appropriateness
of the Unit that Local 399 sought to represent.
(Footnote continued from preceding page.)
The Employer contends that the record is incomplete with
regard to evidence bearing on Petitioner’s history, practice and
experience in representing the type ot employees in the unit
sought; the area and industry praciice regarding the representa-
tion of the type of employees in the unit sougat; and the efiect
that a separate stationary engineers unit would have on the
Employer’s industrial relations. On the basis of the entire record,
it is the opinion of the undersigned, and I find that there is
sufficient evidence in the record to make a determination appro-
priately taking into account the factors that the Employer sug-
gests are missing.
. +++ Various types of employers employ stationary engineers
represented by the Petitioner, to wit; a building managers
association, a hotel association, individual laundries, shopping
centers, office complexes, numerous industries, hospitals, and
governmental units. 20 to 25 percent of Petitioner’s members
are engaged in manufacturing of production concerns, the
record indicates that duties Petitioner’s members perform at
various laundry and manufacturing concerns are similar in
nature to those duties performed by the employees in the unit
sought. The record also indicates that employees performing
duties similar in nature to those in the unit sought are repre-
sented by other unions on a plant-wide basis without adverse
effects on industrial relations.
a of a * of
Upon examining the record as a whole and weighing all
relevant evidence and factors, I find that since the stationary
engineers work in the boilerroom which is separated from the
rest of the facility by a locked door, work 24 hour—7 days a
week regularly, are required to have experience and training,
perform the same type of work often called “powerhouse” work,
have separate senicrity rights apart from the rest of the main-
tenance employees, have their own day to day supervisor,
perform work in the boilerroom of a type which is rarely, if
ever done by other employees, spend a substantial period of
time in the boilerroom apart from the maintenance and produc-
tion workers, have their own locker and washroom facilities,
generally have lunch away from other employees, and further
since Petitioner represents and has represented employees per-
forming similar duties in similar operations in the area, I find
the stationary engineers to be an appropriate unit... .
A27
IV. CONCLUSION
We conclude that the Board properly certified Local 399
as the collective bargaining representative for Bell & Howell’s
stationary engineers and that Bell & Howell was therefore obli-
gated to bargain in good faith with the union. Accordingly, the
decision of the Board, holding that Bell & Howell’s refusal to
bargain with Local 399 violated §§ 8(a)(5) and (1) of the
LMRA is
Affirmed.
A28
APPENDIX B
Bell & Howell Company and International Union of Operating
Engineers, Local 399, AFL-CIO, Petitioner.
Case 13-RC-13022
September 20, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
On January 15, 1974, the Regional Director for Region
13 issued a Decision and Direction of Election in the above-
entitled proceeding. On February 15, 1974, a secret ballot
election was conducted among the employees in the unit.’ The
tally of ballots furnished the parties showed that of approxi-
mately eight eligible voters eight cast valid ballots, of which
seven were for, and one against, the Petitioner.
Thereafter, on February 20, 1974, the Employer filed with
the Regional Director a motion to disqualify the Petitioner as
collective-bargaining representative. On March 8, 1974, the
Regional Director transferred this matter to the Board for de-
cision.
In its motion the Employer argues, inter alia, that the motion
for disqualification should be granted based on the following
contentions:
1. Since, according to the testimony of Richard Wren,
president and business representative of Petitioner, Petitioner
exercises substantial control over the stationary engineering
1. All stationary emgineers and stationary firemen in department
2889 at the Employer’s facility at 7100 N. McCormick Blvd.,
Lincolnwood, Illinois, but excluding all office clerical employees,
plant clerical employees, guards and supervisors as defined in the
Act, and all other employees.
A29
trade in the Chicago area, the Employer contends that member-
ship in the Petitioner is the sine qua non for obtaining employ-
ment in the trade in the Chicago area. Accordingly, the Em-
ployer argues that the absence of female stationary engineers
is the natural effect of Petitioner’s alleged discriminatory
policies.
2. Petitioner’s bylaws provide for a death benefit payable
to “beneficiaries of members.” The primary beneficiary is a
member’s “widow.” No provision is made for a membet’s
“widower.” The Employer claims that the Petitioner’s plan,
whereby death benefits are payable to the surviving spouse of a .
male member, but not to the surviving spouse of a female mem-
ber, unlawfully discriminates on the basis of sex in violation of
section 703(c), Title VII of Civil Rights Act of 1964, as
amended.
3. Petitioner’s group insurance plan which provides benefits
for members who are employed by employers with whom Peti-
tioner has agreements is alleged to be discriminatory. Maternity
benefits are provided for “dependent wives” of male employees,
but no maternity benefits are provided for female employees.
The Employer contends that the maintenance of such an agree-
ment which discriminates on the basis of sex is in violation of
section 703(c), Title VII of the Civil Rights Act of 1964, as
amended.
4. The Employer contends that none of Petitioner’s officers
or business representatives is female. In addition, the Employer
asserts that it contacted a number of the employers who have
contracts with Petitioner, and that, of the more than 1,000 per-
sons who are members of Petitioner? and who are covered by
these contracts, not one is female. The Employer points that
this complete absence of female officers, business representa-
tives, and members establishes a prima facie case of past dis-
crimination.
2. The Employer states that Petitioner has 4,300 members.
A30
5. Combining all of the above-mentioned allegations, the
Employer argues that the natural effect has been to discourage
females from attempting to enter the stationary engineering trade
in the Chicago area. Therefore, on the basis of N. L.R. B. v.
Mansion House Center Management Corp., 473 F.2d 471
(C. A. 8, 1973), the Employer argues that Petitioner should
be disqualified as the collective-bargaining representative of the
employees in the appropriate unit.
On February 21, 1974, the Employer forwarded a letter to
the Regiona! Director for Region 13 in further support of its
motion to disqualify the Petitioner. In this letter, the Employer
directed the Regional Director’s attention to the “Geographical
Profile of Employment and Unemployment, 1972” published
by the Bureau of Labor Statistics. This report, the Employer
submits, shows that in the Chicago Standard Metropolitan
Statistical Area (SMSA) the civilian labor force numbers
3,099,000. Of that total, the report states that 1,069,000 are
women 20 years or over. The Employer concludes from these
statistics that 34 percent of the civilian labor force in the
Chicago SMSA are women. However, the Employer contends
that there are 0 percent women among Petitioner’s members
who are stationary engineers. Thus, the Employer requested a
hearing to present evidence tending to show that Petitioner un-
lawfully discriminates against females.
On May 8, 1974, the Petitioner filed an opposition to the
motion to disqualify. The Petitioner argued, inter alia, that it
does not have a contractually established exclusive hiring hall
and exercises no control over the composition of the work force
it represents or seeks to represent. The Petitioner claims to “take
the work force it represents as it finds it.” Moreover, the Peti-
tioner argues that on the basis of Washington Sheraton Corpora-
tion, t/a Sheraton Park Hotel & Motor Inn, 199 NLRB 728
(1972), the Board should reject an attempt to disqualify a
union, where there is no evidence that there are any female
employees in the unit sought. For under Washington Sheraton,
A31
the Petitioner argues, the test to establish unlawful discrimina-
tory practices is relevant with respect to only the employees in
the unit sought. Since there is no evidence of female employees
in the unit sought, the Petitioner contends that the question of
discrimination is not relevant.
On May 14, 1974, the Employer filed a reply to Petitioner’s
opposition to the motion to disqualify and on May 16, 1974,
the Employer requested oral argument before the Board.
The Petitioner, on June 13, 1974, in a letter to the Board,
requested that, in light of Bekins Moving & Storage Co. of
Florida, Inc., 211 NLRB No. 7 (1974), the case be returned
to the Region with instructions that a certification be issued.
Thereafter, on June 19, 1974, the Employer filed a motion
for leave to file an additional brief in light of the Bekins, supra,
decision. On June 21, 1974, the Petitioner filed an opposition
to the Employer’s motion for leave to file an additional brief.
The Board has considered the entire record in this case with
respect to the issues raised by the motions and briefs and finds
as follows:
The Employer’s motion to disqualify the Petitioner as the
collective-bargaining representative; its request for oral argu-
ment; and its motion for leave to file an additional brief are
hereby denied.
We believe that disqualification of the Petitioner because it
allegedly discriminates on the basis of sex is neither required
by the Constitution nor permitted by the Act. As we stated in
our dissent in Bekins Moving & Storage Co. of Florida, Inc.,
supra, we would “leave such questions as they may raise, with
respect to the Petitioner’s willingness or capacity to represent
all employees in the bargaining unit, to be resolved in other
proceedings under the Act.”
A32
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid ballots have
been cast for International Union of Operating Engineers, Local
399, AFL-CIO, and that, pursuant to Section 9(a) of the Na-
tional Labor Relations Act, as amended, the said labor organiza-
tion is the exclusive representative of all the employees in the
unit found appropriate herein for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment.
MEMBER KENNEDY, concurring:
I agree with Member Fanning and Member Penello to the
extent that I would deny the Employer’s motion to disqualify
the Petitioner since that motion is based on alleged sex dis-
crimination by the Petitioner. I do not believe that the Board
should entertain an allegation that a labor organization discrimi-
nates on the basis of sex in a precertification representation pro-
ceeding.
Accordingly, I concur with Members Fanning and Penello in
issuing a certification to the Petitioner in these circumstances.
In Bekins, I stated that “the Board must entertain allegations
that a labor organization excludes persons from membership
on the basis of race, alienage, or national origin.” Each of
these classifications has been determined by the Supreme Court
to be inherently suspect,* thus requiring strict judicial scrutiny.
In Kahn v. Shevin, Attorney General of Florida, et al., 416
U.S. 351 (1974), and more recently in Geduldig v. Aiello,
417 U.S. 484 (June 17, 1974), the majority of the Supreme
Court refused to find legislative classifications based on sex in-
herently suspect.
5 See Loving Vv. Virginia, 388 U.S. 1, 11 (1967); McLaughlin
Vv. Florida, 379 U.S. 184, 191-192 (1964); Graham, Commissioner,
Department of Public Welfare of Arizona v. Richardson, 403 U.S.
eg (1971); Oyama v. California, 332 U.S. 633, 644-646
A33
In my view, the Board must satisfy its constitutional responsi-
bilities in a manner which will least interfere with the procedures
by which employees select a bargaining representative. There-
fore, the Board should move into this developing area of the
law one step at a time.
In Bekins, Chairman Miller and Member Jenkins stated that
“after much deliberation, we have concluded that we are not
yet sufficiently experienced in this newly developing area of the
law to enable us to codify, at this time, our approach to such
issues, either procedurally or substantively.” By the same token,
we are not sufficiently experienced at this time to effectively
address ourselves to the entire spectrum of the discrimination
area by adjudicatory means.
Accordingly, it is my belief that the most judicious and
reasonable method of approach is to address ourselves, at this
juncture, to the most serious forms of unlawful discrimination.
Thus, in precertification representation proceedings, the Board
should only view allegations of discrimination which involve
classifications determined by the Supreme Court to be inher-
ently suspect, that is, race, alienage, or national origin. It must
be emphasized that I do not approve or condone any form of
unlawful discrimination. However, I agree with Judge Wisdom
of the Fifth Circuit that “an Agency need not strike at all
evils at the same time . . . reform may take one step at a time
addressing itself to the phase of the problem which seems most
acute.” Ray Baillie Trash Hauling, Inc., et al. v. Kleppe, 477
F, 2d 696, 704 (C. A. 5, 1973).*
Accordingly, I would not view an allegation of unlawful sex
discrimination in a precertification representation proceeding.
Nevertheless, this does not foreclose a party from raising this
question after certification has issued. For I would then view
the activity as a possible breach of the statutory duty of fair
4. See also Williamson v. Lee Optical Co., 348 U.S. 483, 489
(1955).
A34
representation. See Independent Metal Workers Union, Local
No. 1 (Hughes Tool Company), 147 NLRB 1573 (1964).
Even if I am in error with respect to the obligation of this
Agency to consider discrimination on the basis of sex as an
impediment to certification of a labor organization, I do not
believe that the allegations in the Employer’s motion raise issues
which warrant delay in certifying Petitioner. There is no allega-
tion that Petitioner’s constitution or bylaws deny membership
to females. In my view, bylaw provisions which provide death
benefits to widows and maternity benefits for dependent wives
impose no constitutional impediment to certification.
The Employer alleges in its. motion that Petitioner exercises
control over stationary engineers in the Chicago area and the
absence of females in its membership suggests that Petitioner
is engaged in a pattern or practice of sex discrimination. In
the absence of a Supreme Court directive, I am unwilling to
litigate the lawfulness of an alleged discriminatory hiring hall in
a representation proceeding. Nor am I willing to convert our
representation cases to a title VII lawsuit on the basis of allega-
tions that Petitioner has no female business agents or officers
and that there is a statistical imbalance with respect to the num-
ber of women who are members of Petitioner.
Accordingly, the Employer’s motions should be denied and
Petitioner certified.
CHAIRMAN MILLER and MEMBER JENKINS, dissenting:
Unlike our colleagues, we would find that the Employer has
raised substantial questions of fact and law with respect to
whether the Petitioner engages in discrimination on the basis
of sex. Therefore, we would order a hearing to develop all of
the relevant facts concerning the Employer’s allegations and to
afford the Petitioner an opportunity to present a defense to such
contentions.
A35
In Bekins, we stated that if it is shown that a union fails
to fairly represent employees, “we must, in order that our own
actions conform to the Constitution, take the drastic step of
declining to certify the labor organization.” Before this action
is contemplated we must have the relevant facts and the parties’
contentions before us. Accordingly, a hearing to ascertain this
information is an absolute necessity.
Here, the Employer has proffered prima facie evidence which
challenges the Petitioner’s ability to fairly represent employees.
The Employer contends, inter alia, that the Petitioner exercises
substantial control over the stationary engineering trade in the
Chicago area. In fact, the Employer argues that membership in
Petitioner is the “sine qua non for obtaining employment” in
this field. The Employer contends that the Petitioner has no
female officers or business representatives. It also alleges that on
the basis of its own survey the Petitioner has no female mem-
bers. Moreover, the Employer points to the Petitioner’s bylaws
and its group health plan as having the natural effect of dis-
couraging females from attempting to enter the stationary en-
gineering trade in Chicago.
In our view, the serious contentions made by the Employer
compel that a hearing be heid on these issues and that a deter-
mination be made on the merits before a certification is issued.
Member Kennedy asserts that the Board should not consider
allegations of sex discrimination in a precertification representa-
tion proceeding. We disagree. In Bekins, we clearly defined our
position with respect to the constitutional origin of the duty
of fair representation.
Since we believe that a labor organization which discourages
females from membership would violate its duty to fairly repre-
sent all employees, we feel that the Board must consider such
allegations in a precertification representation proceeding. In
our opinion, the majority is in error in refusing to consider such
allegations and in failing to order a hearing to obtain the rele-
vant facts. To issue a Board certification to the Petitioner, not-
A36
withstanding prima facie evidence that the Petitioner discrimi-
nates on the basis of sex, serves only to erode the well-established
principle that a collective-bargaining agent must represent all
employees fairly.
Therefore, for the above-stated reasons, we would order a
hearing to determine whether the Petitioner discriminates on
the basis of sex.
A37
APPENDIX C
Bell & Howell Company and Local 399, International Union
of Operating Engineers, AFL-CIO.
Case 13-CA-13680
September 29, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
‘Jpon a charge filed on October 23, 1974, by Local 399,
International Union of Operating Engineers, AFL-CIO, herein
called the Union, and duly served on Bell & Howell Company,
herein called the Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director for
Region 13, issued a complaint and notice of hearing on Novem-
ber 22, 1974, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint, and notice
of hearing before an Administrative Law Judge were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the complaint
alleges in substance that on September 20, 1974, following a
Board election in Case 13-RC-13022 the Union was duly certi-
fied as the exclusive collective-bargaining representative of Re-
spondent’s employees in the unit found appropriate;' and that,
1. Official notice is taken of the record in the representation
proceeding. Case 13-RC-13022, 213 NLRB 407 (1974), as the
term “record” is defined in Secs. 102.68 and 102.69(g) of the
Board’s Rules and Regulations, Series 8, as amended. See LTV
Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F. 2d 683
(Footnote continued on next page.)
A38
commencing on or about October 16, 1974, and at all times
thereafter, Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the exclusive
bargaining representative, although the Union has requested
and is requesting it to do so. On December 20, 1974, Respon-
dent filed its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On January 14, 1975, counsel for the General Counsel filed
directly with the Board a motion to transfer proceedings to
the Board and motion for summary judgment. On January
24, 1975, the Union also filed a motion for summary judgment.
Subsequently, on April 1, 1975, the Board issued an order
transferring the proceeding to the Board and a notice to show
cause why the General Counsel’s and the Union’s motions for
summary judgment should not be granted. On May 6, 1975,
Respondent filed a response to notice to show cause.
Upon the entire record in this proceeding, the Board makes
the following:
Ruling on the Motions for Summary Judgment
In its answer to the complaint and response to the notice to
show cause, Respondent attacks certain of the determinations
made by the Board in the underlying representation proceed-
ing, Case 13-RC-13022.
Our review of the record indicates that on January 15, 1974,
the Regional Director issued his Decision and Direction of Elec-
tion in which he found, contrary to the Respondent, that a unit
of stationary engineers and stationary firemen was appropriate
and that Respondent was not prejudiced by certain rulings made
by the Hearing Officer and the Regional Director as to the pro-
(Footnote continued from preceding page.)
(C. A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151
(1967), enfd. 415 F.2d 26 (C. A. 5, 1969); Intertype Co. v.
Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164
NLRB 378 (1967), enfd. 397 F. 2d 91 (C. A. 7, 1968); Sec. 9(d)
of the NLRA.
A39
duction of documents and the eliciting of testimony at the hear-
ing. Respondent filed with the Board a timely request for re-
view with respect to these issues. However, by telegraphic order
dated February 12, 1974, the Board denied the request for
review on the ground that it raised no substantial issues war-
ranting review. °
The Union received a majority of the votes cast at an elec-
tion held on February 15, 1974. Thereafter, on February 20,
1974, the Respondent filed with the Regional Director a motion
to disqualify the Union as collective-bargaining representative
on the ground that it discriminated on the basis of sex. On
March 8, 1974, the Regional Director transferred this matter to
the Board for decision. On September 29, 1974, the Board
denied Respondent’s motion and certified the Union.*
It is the General Counsel’s and the Union’s basic position that
all issues in dispute were decided in the representation proceed-
ing and that they are entitled to summary judgment as a matter
of law. As reflected in its answer to the complaint and its
response to the notice to show cause, Respondent’s basic de-
fense to the alleged 8(a)(5) and (1) violation is that the
Board erred in certifying the Union because the Union allegedly
discriminates on the basis of sex, because the certified unit is
inappropriate, and because evidentiary rulings made by the
Hearing Officer and by the Regional Director were erroneous.
These matters raised here were fully considered by the Board in
the representation proceeding and resolved adversely to the
Respondent.
It is well settled that in the absence of newly discovered or
previously unavailable evidence or special circumstances a re-
spondent in a proceeding alleging a violation of Section 8(a) (5)
is not entitled to relitigate issues which were or could have been
litigated in a prior representation proceeding.®
2. Bell & Howell Company, 213 NLRB 407 (1974).
3. See Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146,
162 (1941); Rules and Regulations of the Board, Secs. 102.67(f)
and 102.69(c).
A40
All issues raised by the Respondent in this proceeding were
or could have been litigated in the prior representation proceed-
ing, and the Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist herein which
would require the Board to reexamine the decision made in the
representation proceeding. We therefore find that the Re-
spondent has not raised any issue which is properly litigable
in this unfair labor practice proceeding. We shall, accordingly,
grant the motions for summary judgment.°
On the basis of the entire record, the Board makes the
following:
FINDINGS OF FACT
I, THE BUSINESS OF THE RESPONDENT
Respondent, Bell & Howell Company, is a corporation duly
organized under, and existing by virtue of, the laws of the
State of Illinois with offices and places of business in Lincoln-
wood and Evanston, Illinois, where it has been at all times
material herein engaged in the manufacture and distribution of
photographic and related miscellaneous products. During the
past 12 months, Respondent, in the course and conduct of its
business operations, sold and distributed from its Illinois facilities
products valued in excess of $50,000 directly to points outside
the State of Illinois.
We find, on the basis of the foregoing, that Respondent is,
and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
4. Members Fanning and Penello, having certified the Union
herein for the reasons set forth in the dissenting opinion in Bekins
Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974),
concur in the result herein.
5. Member Jenkins, while adhering to the views concerning sex
discrimination expressed in his dissent in the representation proceed-
ing, agrees that that proceeding was dispositive of the issue and thus
joins in the judgment herein.
A4l
the Act, and that it will effectuate the policies of the Act to
assert jurisdiction herein.
Il. THE LABOR ORGANIZATION INVOLVED
Local 399, International Union of Operating Engineers,
AFL-CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent constitute a
unit appropriate for collective-bargaining purposes within the.
meaning of Section 9(b) of the Act:
All stationary engineers and stationary firemen in depart-
ment 2889 at the Employer’s facility at 7100 N. Mc-
Cormick Blvd., Lincolnwood, Illinois, but excluding all
office clerical employees, plant clerical employees, guards
and supervisors as defined in the Act, and all other em-
ployees.
2. The certification
On February 15, 1974, a majority of the employees of Re-
spondent in said unit, in a secret ballot election conducted under
the supervision of the Regional Director for Region 13, desig-
nated the Union as their representative for the purpose of col-
lective bargaining with the Respondent. The Union was certi-
fied as the collective-bargaining representative of the employees
in said unit on September 20, 1974, and the Union continues
to be such exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
A42
B. The Request To Bargain and Respondent's Refusal
Commencing on or about October 3, 1974, and at all times
thereafter, the Union has requested the Respondent to bargain
collectively with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described unit. Com-
mencing on or about October 16, 1974, and continuing at all
times thereafter to date, the Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargaining of all em-
ployees in said unit.
Accordingly, we find that the Respondent has, since October
16, 1974, and at all times thereafter, refused to bargain col-
lectively with the Union as the exclusive representative of the
employees in the appropriate unit, and that, by such refusal,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in section
I, above, have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
Vv. THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom, and, upon request, bargain collectively
A43
with the Union as the exclusive representative of all employees
in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appropriate unit
will be accorded the services of their selected bargaining agent
for the period provided by law, we shall construe the initial
period of certification as beginning on the date Respondent
commences to bargain in good faith with the Union as the
recognized bargaining representative in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962);
Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F. 2d 600 (C. A. 5, 1964), cert. denied 379
U.S. 817 (1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F. 2d 57 (C. A. 10, 1965).
The Board, upon the basis of the foregoing facts and the entire
record, makes the following:
CONCLUSIONS OF LAW
1. Bell & Howell Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 399, International Union of Operating Engineers,
AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All stationary engineers and stationary firemen in depart-
ment 2889 at the Employer’s facility at 7100 N. McCormick
Blvd., Lincolnwood, Illinois, but excluding all office clerical
employees, plant clerical employees, guards and supervisors as
defined in the Act, and all other employees, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since September 20, 1974, the above-named labor organ-
ization has been and now is the certified and exclusive repre-
A44
sentative of all employees in the aforesaid appropriate unit for
the purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on or about October 16, 1974, and at all
times thereafter, to bargain collectively with the above-named
labor organization as the exclusive bargaining representative of
all the employees of Respondent in the appropriate unit,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfering with,
restraining, and coercing, employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board hereby
orders that Respondent, Beil & Howell Company, Lincolnwood,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease‘and desist from:
(a) Refusing to bargain collectively concerning rates of pay,
wages, hours, and other terms and conditions of employment
with Local 399, International Union of Operating Engineers,
AFL-CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All stationary engineers and stationary firemen in depart-
ment 2889 at the Employer’s facility at 7100 N. Mc-
Cormick Blvd., Lincolnwood, Illinois, but excluding all
office clerical employees, plant clerical employees, guards
A45
and supervisors as defined in the Act, and all other
employees.
(b) In any like or related manner interfering with, restrain-
ing, Or coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employees in
the aforesaid appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its Lincolnwood, Illinois, plant copies of the
attached notice Marked “Appendix.’’® Copies of said notice, on
forms provided by the Regional Director for Region 13, after
being duly signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps have been
taken to comply herewith.
6. In the event that this Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board.”
A46
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargafn collectively concerning rates
of pay, wages, hours, and other terms and conditions of em-
ployment with Local 399, International Union ‘of Operating
Engineers, AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the above-named
Union, as the exclusive representative of all employees in the
bargaining unit described below, with respect to rates of pay,
wages, hours, and other terms and conditions of employment,
and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All stationary engineers and stationary firemen in depart-
ment 2889 at the Employer’s facility at 7100 N. Mc-
Cormick Blvd., Lincolnwood, Illinois, but excluding all
office clerical employees, plant clerical employees, guards
and supervisors as defined in the Act, and all other
employees.
BELL & HOWELL COMPANY
A47
APPENDIX D
Bell & Howell Company and Local 399, International Union of
Operating Engineers, AFL-CIO. Case 13-CA-13680
June 24, 1977
SUPPLEMENTAL DECISION AND ORDER
On September 29, 1975, the National Labor Relations Board
issued its Decision and Order’ in the above-entitled proceeding
finding that Respondent, hereinafter also called Bell & Howell,
had engaged in and was engaging in unfair labor practices in
violation of Section 8(a)(5) of the National Labor Relations
Act, as amended. Respondent was ordered to cease and desist
therefrom, and, upon request, to bargain collectively with
Charging Party, hereinafter called the Union, as the exclusive
bargaining representative of the employees in the designated
unit.2 On December 22, 1975, the Board notified the parties
that it had decided, sua sponte, to reconsider its decision, and on
January 19, 1976, notified the parties that oral argument would
be held on February 2, 1976. Oral argument was held as
scheduled.’ and, thereafter, the American Federation of Labor
and Congress of Industrial Organizations and the General
Counsel each filed a statement of position.
The Board has reconsidered its decision in light of the entire
record, including the oral argument and statements of position,
1. 220 NLRB 881.
2. All stationary engineers and stationary firemen in Department
2889 at the Employer’s facility at 7100 N. McCormick Blvd..,
Lincolnwood, Illinois, but excluding office clerical employees, plant
clerical employees, guards and supervisors as defined in the Act,
and all other employees.
3. The Board granted the request of the United States Chamber
of Commerce and the American Federation of Labor and Congress
of Industrial Organizations to participate in the oral argument as
amici curiae.
A48
and has decided to reaffirm its previous Decision and Order for
the reasons set forth below.
Respondent contends that the certification issued in the under-
lying representation proceeding* was invalidly issued because the
Board refused to conduct a precertification investigation and
hearing on the issue of whether the Union discriminates against
women with respect to Union-maintained benefit plans and
membership requirements and deprives women of an opportunity
for employment as stationary engineers in the Chicago area.
It is Respondent’s view that the existence of such discrimination
in any or all the particulars urged would require the Board, in
accordance with the due process clause of the fifth amendment
to the Constitution, to disqualify the Union from serving as the
exclusive representative of Respondent’s employees and to refuse
to certify it as such representative notwithstanding it had won an
election duly conducted in accordance with the provisions of
Section 9 of the Act. Respondent further contends that, assuming
constitutional considerations do not operate to invalidate the
certification, such considerations nevertheless preclude the Board
from issuing an order requiring Respondent to bargain with the
Union because such an order places the imprimatur of the
Federal Government on those discriminatory practices.
In our recent decision in Handy Andy,® we overruled the
Bekins decision® and set forth the reasons we believe that’
relevant constitutional:and statutory considerations do not re-
quire or warrant withholding certification of a union which has
been duly selected as exclusive representative of an employer’s
employees.’ In accordance with that decision, we find no merit
to Respondent’s argument that our certification of the Union is
4. Bell & Howell Company, 213 NLRB 407 (1974).
5. Handy Andy, Inc., 228 NLRB 447 (1977).
6. Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB
138 (1974).
7. See also the dissenting opinion of Members Fanning and
Penello in Bekins, supra.
A49
defective and without force and effect, but, to the contrary, we
find that the certification was properly issued in accordance with
due process of law.
We also find no merit to Respondent’s contention that the
Board is constitutionally proscribed from ordering Respondent
to bargain with the Union because of the iatter’s alleged discrim-
inatory practices, The issue before us is whether Respondent
refused and failed to recognize and bargain with the certified
representative of its employees as their exclusive bargaining
representative.® The refusal and failure are admitted by Respond-
ent, and we have found that the certification was validily issued
in effectuation of statutory policies. Clearly, then a violation of
Section 8(a)(5) of the Act which makes it an unfair labor
practice for an employer “to refuse to bargain collectively
with the representative of his employees” has been made out.
Contrary to the claim of Respondent, neither our Order nor
court enforcement thereof aids or encourages the Union with
which Respondent is required to bargain to engage in such
invidious discrimination; indeed, such practices by the Union
are prohibited by other provisions of the Act. For, it is well
established that the Union’s status as exclusive representative -
imposes upon it the statutory obligation to represent all em-
ployees in the unit fairly and in good faith without invidious
discrimination.® As the Supreme Court recently had occasion to
note in a case where it was also argued that the system of rights
and obligations established by the Act to govern the collective-
bargaining relationship should give way to the paramount value
of combating racial discrimination:
In vesting the representatives of the majority with this
broad power Congress did not, of course, authorize a
8. Because of Respondent’s admitted refusal to recognize and
bargain with the Union, the latter has never had the opportunity to
represent the employees in the bargaining unit and, thus, has never
had the opportunity to demonstrate that its representation of those
employees would accord with the dictates of the Act.
9. The Wallace Corporation v. N.L.R.B., 323 U.S. 248
(1944).
ASO
tyranny of the majority over minority interests. First, it
confined the exercise of these powers to the context of a
“unit appropriate for the purposes of collective bargaining,”
i.e., a group of employees with a sufficient commonality of
circumstances to ensure against the submergence of a min-
ority with distinctively different interests in the terms and
conditions of their employment. See Allied Chemical Work-
ers Vv. Pittsburgh Plate Glass Co., 404 U.S. 157, 171
(1971). Second, it undertook in the 1959 Landrum-Griffin
Amendments, 73 Stat. 519, to assure that the minority
voices are heard as they are in the functioning of a demo-
cratic institution. Third, we have held, by the very nature
of the exclusive bargaining representative’s status as repre-
sentative of all unit employees, Congress implicitly im-
posed upon it a duty fairly and in good faith to represent
the interests of minorities within the unit. Vaca v. Sipes,
supra; Wallace Corp. v. N.L.R.B., 323 U.S. 248 (1944);
cf. Steele v. Louisville & N.R. Co., 323 U.S. 192 (1944).
And the Board has taken the position that a union’s re-
fusal to process grievances against racial discrimination, in
violation of that duty, is an unfair labor practice. Hughes
Tool Co., 147 NLRB 1573 (1964); see Miranda Fuel Co.,
140 NLRB 181 (1962), enforcement denied 326 F.2d 172
C.A. 2, 1963). Indeed, the Board has ordered a union
implicated by a collective-bargaining agreement in discrim-
ination with an employer to propose specific contractual
provisions to prohibit racial discrimination. See Local
Union No. 12, United Rubber Workers of America v.
N.L.R.B., 368 F.2d 12 (C.A. 5, 1966) (enforcement
granted).’°
From the foregoing it is clear that the right of employees to
be free from invidious discrimination in the representation
afforded them by their bargaining representative is protected by
the Act, which, it has been held, makes it an unfair labor prac-
tice for the representative to engage in such practices and pro-
vides employees with remedies against such conduct. For this
reason, if not for any other, Respondent’s contention that consti-
tutionally the Board cannot issue, and the courts cannot enforce,
10. Emporium Capwell Co. v. Western Addition Community
Organization, 420 U.S. 50, 64-65 (1975).
ASI
an order directing Respondent to bargain with the Union as the
employees’ exclusive bargaining representative must fail. For,
given the statutory restrictions upon the powers and authority of
the exclusive majority representative, it simply cannot be estab-
lished that either the certification or the bargaining order makes
the Union’s discriminatory practices the actions of the Govern-
ment. To the extent the Union’s discriminatory practices respect-
ing eligibility for membership and Union-provided benefits bear
upon and affect the Union’s representation of Respondent’s em-
ployees with respect to wages, hours, and terms and conditions
of employment, they are undertaken in contravention of the
certification and the bargaining order, not in accordance there-
with, and the employees have a statutorily prescribed method of
redress designed to permit elimination of the offending practices
while preserving the collective-bargaining relationship. To the
extent that such practices may be beyond the reach of the Board,
because they do not impinge upon the organizational or repre-
sentational rights of employees, Congress has provided other
means by which the employees affected may seek redress and
relief. Thus, in the Civil Rights Act of 1964, as amended," the
Equal Employment Opportunity Commission has been given
authority to eliminate “unlawful employment practices” of unions
certified by the Board as exclusive bargaining representatives.
Such unlawful practices include the practice of discriminating
against, segregating, or otherwise classifying members on the
basis of race, color, sex, religion, or national origin.’ Again,
such practices are not taken pursuant to or in accordance with
governmental approval but in contravention of these statutory
enactments and well-established governmental policy which
gives the victims of such practices appropriate means of redress
and relief designed to eliminate the offensive practices while
preserving the collective-bargaining relationship. Therefore, it is
clear from all of the foregoing that enforcement of the bargain-
11. 42 U.S.C. 2000e.
12. 42 U.S.C. 2000e(2).
AS2
ing order herein does not constitute governmental action foster-
ing or encouraging adherence to the claimed discriminatory
practices of the Union.”
We recognize, of course that
. . . national labor policy embodies the principles of non-
discrimination as a matter of highest priority, Alexander v.
Gardner-Denver Co., 415 U.S. 36, 47 (1974), and it is a
commonplace that we must construe the NLRA in the
light of the broad national labor policy of which it is a part.
See Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-
458 (1957)."
However, in determining whether these broad principles justify
the withholding of a bargaining order in a case such as this,
consideration must be given to whether such action promotes or
runs counter to the basic policies and purposes of the Act we
13. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972);
Jackson Vv. Metropolitan Edison Co., 419 U.S. 345 (1974). With
all due respect to the courts of appeals which have held contrary to
our views here, we decline to follow their lead. In N. L.R.B. v.
Mansion House Center Management Corp., 473 F. 2d 471 (C.A. 8,
1973), we note that the court failed to consider the teachings of
Moose Lodge and did not have the benefit of the Jackson decision.
Nor. did it consider the fact that the respondent employer therein,
like the Respondent here, was claiming possible infringement of the
constitutional rights of its employees. As the Supreme Court has
noted, Respondent “can complain only of the infringement of its own
constitutional immunity, not that of its employees.” Erie Railroad
Company Vv. Williams, 233 U.S. 685, 697 (1914); Virginia Railway
Co. v. System Federation No. 40, Railway Employees Department
of the American Federation of Labor, 300 U.S. 515, 558 (1937).
See also Leslie, “Governmental Action and Standing; NLRB Certifi-
cation of Discriminatory Unions,” 1 Ariz. St. L. J. 35, 38-46
(1974). Even were this an appropriate situation in which to permit
an exception to that rule so that Respondent could assert the consti-
tutional rights of its employees, its defense would still founder on the
fact, as noted above, that Congress has established appropriate
administrative machinery in the Act itself to safeguard those very
rights while still ensuring to employees the right to be represented for
purposes of collective bargaining by their duly designated repre-
sentative.
14. Emporium Capwell Co. v. WACO, 420 U.S. at 66.
AS3
administer."* We have been admonished against both a single-
minded administration of the Act which ignores other and equally
important congressional objectives,’® and against enforcing poli-
cies given to others to administer in the guise of enforcing the
provisions of the Act.’ Congress has charged the Board with the
task of administering a statute which declares it
. . . to be the policy of the United States to eliminate the
causes of certain substantial obstructions to the free flow
of commerce and to mitigate and eliminate these obstruc-
tions when they have occurred by encouraging the practice
and procedure of collective bargaining and by protecting
the exercise by workers of full freedom of association, self-
organization, and designation of representatives of their
own choosing, for the purpose of negotiating the terms and
conditions of their employment or other mutual aid or
protection.'®
To this end Congress provided in the Act for orderly procedures
by which employees can select a union to act as their exclusive
representative as well as giving the union, when so selected, a
method of enforcing against their employer its right to so
function. Congress has also provided the statutory methods by
which the employees can enforce against the union their right
to be represented fairly and in good faith without invidious
discrimination. Congress has stopped short, however, of giving
the Board authority over the internal affairs of unions, though
it has regulated such matters by the passage of other legislation,
notably the Civil Rights Act of 1964, as amended, and the
Labor Management Reporting and Disclosure Act of 1959 (73
Stat. 419), both of which seek to protect employees in their
15. National Association for the Advancement of Colored People
Vv. Federal Power Commission, 425 U.S. 662 (1976).
16. Southern Steamship Co. v. N.L.R.B., 316 U.S. 31, 47
(1942).
17. Local 1976, United Brotherhood of Carpenters and Joiners
of America, AFL |Sand Door & Plywood Co.] v. N. L. R. B., 357
U.S. 93, 108-111 (1958).
18. Sec. 1 of the Act.
A54
dealings with their unions. Whether considered solely from the
standpoint of the Act we administer or as a matter of accom-
modating the several statutory schemes that together make up
our broad national labor policy, we believe that withholding a
bargaining order in circumstances such as those before us runs
counter to our duty. We are persuaded that it is far better to
preserve and promote the collective-bargaining relationship once
properly established by an order requiring Respondent to bargain
with the duly selected exclusive representative than it is to
destroy it by withholding the bargaining order. The first course
gives the bargaining representative no license to engage in the
discrimination complained of by Respondent; indeed, any such
action can be dealt with in a statutorily prescribed way by
employees whose rights are infringed.’® The second destroys the
bargaining relationsip (and may even eliminate the employees’
right to proceed against the Union to eliminate the offensive
19, For example, Sec. 8(b)(1)(A) provides a statutory pro-
cedure by which employees may obtain elimination of offensive
discriminatory practices which frustrate their right to fair represen-
tation by their bargaining representative or which otherwise restrain
or coerce them in the exercise of Sec. 7 rights. Sec. 8(b)(2) enables
them to obtain the elimination of union-sponsored discriminatory
hiring practices. Sec. 8(b)(3) and Sec. 8(a)(5) provide avenues by
which the parties and employees can insure that their exclusive
representative and their employer negotiate about the elimination of
offensive discriminatory terms and conditions of employment. Such
unfair labor practice proceedings, when invoked by properly filed
charges with the Board, are prosecuted by the Government and have
the merit of dealing with offensive practices that have occurred and
are continuing to occur in the bargaining unit, rather than with those
which may possibly occur in the future, or have occurred in different
bargaining units. The unfair labor practice proceeding will provide a
sound evidentiary basis for remedial orders tailored to the situation
calling for redress and which normally will permit the collective-
bargaining relationship to continue to function free from the stultify-
ing effect of the offensive practices. In appropriate circumstances,
the remedy may even include revocation of the bargaining repre-
sentative’s authority to represent the employces, but such remedy
will flow from the nature of the violation rather than from a policy
of denying certification and the benefits of a bargaining order neces-
sarily based on a presumption that the bargaining representative will
not discharge its statutory responsibilities and live up to the obliga-
tion the statute imposes upon it.
|
AS5
practices), and does so without the certainty that the Union will
mend its ways. To the extent this Board is charged with responsi-
bility for carrying out aspects of the broad national policy against
invidious discrimination in employment, we believe that responsi-
bility is best discharged by an administration of the Act which
addresses the issue of invidious discrimination when and where
it becomes relevant in the exercise of the normal functions of this
Agency. We are persuaded that inquiry into the Union’s alleged
discriminatory practices is not relevant here, and we believe a
bargaining order is an appropriate remedy for Respondent's
violation of Section 8(a) (5).
Our conclusion that the issue of whether or not a labor or-
ganization practices invidious discrimination is not appropriately
raised in this case does not run afoul of the due process clause
of the fifth amendment by denying Respondent an opportunity
to present this issue in a proper proceeding. For, as we indicated
in Handy Andy, these issues may be raised by filing a charge
alleging that the union has breached its duty of fair representa-
tion in violation of Section 8(b)(1)(A) of the Act, or is re-
fusing to bargain within the meaning of Section 8(d) and
8(b) (3). It is undisputed that no duty of fair representation
arises until the union actually represents employees in a specific
bargaining unit. Consequently, such issues are prematurely
raised in a representation proceeding or in a proceeding, such
as this, where the employer refuses to bargain in order to test
the underlying certification. However, as soon as the union and
the employer enter into a bargaining relationship and the union
begins to represent the unit employees, it becomes subject to the
duty of fair representation and, as we discussed in Handy Andy,
that duty affords protection to unit employees from any dis-
criminatory practices of their bargaining representative.
Proceedings under Section 8(b) are also preferable for reso-
lution of issues involving invidious discrimination, as such pro-
ceedings directly focus upon discrimination affecting unit em-
ployees and afford due process protection to the charged labor
A56
organization. First, the charging party, whether it be an em-
ployer, an employee, or some other person, must come forward
with prima facie evidence of discrimination in the bargaining
unit to warrant issuance of a complaint. Secondly, both the
6-month limitations period of Section 10(b) of the Act and
the provisions of the Administrative Procedure Act apply to
such proceedings. Furthermore, unfair labor practice proceed-
ings are adversary in nature and subject to judicial review.
Finally, an 8(b) proceeding permits a remedy tailored to fit the
violations found, including a cease-and-desist order, affirmative
conduct, and/or, if necessary, revocation of the labor organi-
zation’s certification.*® This method appears to us to be a far
more appropriate means of remedying unlawful discrimination.
Inasmuch as we are not constitutionally required to consider
claims of invidious discrimination in proceedings such as the
instant case, we are not called upon to determine whether or
not sex discrimination is constitutionally prohibited to the same
extent as discrimination on the basis of race. We conclude,
however, as we have in the past, that the duty of fair repre-
sentation includes the duty not to discriminate on the basis of
sex.” Accordingly, we shall treat claims of sex discrimination
in the same manner as any other allegation of invidious dis-
crimination.”
20. Independent Metal Workers Union, Local No. 1 (Hughes
Tool Company), 147 NLRB 1573 (1964).
21. Local No. 106, Glass Bottle Blowers Association, AFL-
CIO (Owens-Illinois, Inc.), 210 NLRB 943 (1974), enfd. 520 F. 2d
693 (C.A. 6, 1975).
22. Member Murphy notes that although the proposed Equal
Rights Amendment to the Constitution, which she vigorously sup-
ports, has not yet been ratified the national labor policy clearly
forbids sex discrimination as well as race discrimination in the work-
place. See Title VII, supra; Equal Pay Act of 1963, 73 Stat. 56,
29 U.S. C. 206(d); Executive Order 11246, as amended by Execu-
tive Order 11375 (1967); Age Discrimination in Employment Act
of 1967; and Department of Labor Order No. 4 (1970), as revised
April 2, 1972.
Of course, the National Labor Relations Act is also part of the
national labor policy and it, too, forbids sex discrimination.
AS7
On the basis of the foregoing, we hereby affirm our original
conclusions of law and Order.
ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board hereby
reaffirms its original Decision and Order in this proceeding and
orders that the Respondent, Bell & Howell Company, Lincoln-
wood, Illinois, its officers, agents, successors, and assigns, shall
take the action set forth in the Board’s original Order (220
NLRB 881).
MEMBER WALTHER, concurring:
I agree with my colleagues that this Board is not constitu-
tionally required to consider claims of invidious discrimination
by labor organizations in its 8(a) (5) certification test/summary
judgment proceedings. Accordingly, I concur in their conclusion
that the General Counsel’s motion for summary judgment should
be granted in this case.
Respondent contends that the Union here engages in invidious
discrimination by virtue of the fact that (1) it has no women
members, officers, or business representatives; (2) it maintains
benefit plans which discriminate against women; and (3) it
deprives women of opportunities for employment as stationary
engineers in the Chicago, Illinois, area. To the extent that these
claims are based upon the statutory duty of fair representation,
I agree with my colleagues that not only are they premature in
an 8(a)(5) certification test/summary judgment proceeding
where the Union by definitions has not yet been afforded an
opportunity to represent the employees at all, but also that such
claims are more appropriately addressed in 8(b) proceedings.
See my concurring opinion in Handy Andy, Inc., 228 NLRB
447 (1977).
A58
As I stated in Handy Andy, however, the proviso to Section
8(b)(1)(A) requires affording different treatment to assertions
that a union discriminates in its membership policies. Such a
claim has been raised here based on sex.
In most certification test/summary judgment proceedings, I
would not entertain defenses based upon membership discrimi-
nation, As explained in Handy Andy, I would consider such
issues at the very outset of the representation proceeding, prior
to the direction of an election. Having been afforded an oppor-
tunity to litigate this issue in the representation proceeding, our
normal rules with respect to relitigation would preclude re-
spondents from raising it again at the summary judgment stage.
The instant case, of course, has not been processed in accord-
ance with the procedures set forth in Handy Andy. Had such
procedures been utilized, however, I still would have found
Respondent’s assertions to be unsupported in the record. As |
stated in Handy Andy, claims of membership discrimination
must be supported by evidence contained in a union’s constitu-
tion, bylaws, or other written statement of policy indicating that
the union restricts access to membership on the basis of race,
alienage, national origin, or sex. Since no such documentary
evidence has been presented either here or to the Regional
Director, I do not view Respondent's assertions as a bar to the
granting of summary judgment.
For the foregoing reasons, I agree that General Counsel’s
motion for summary judgment should be granted.
MEMBER JENKINS, dissenting:
The effect of the Supplemental Decision and Order in this
case is to hold that the due process clause of the fifth amend-
ment does not preclude the Board from certifying as statutory
bargaining representative a Union which discriminates against
women. Government sanction of invidious discrimination based
on sex stands on no better footing than discrimination based on
AS9
race or national origin. Therefore, for the reasons set forth in
my dissenting opinion in Handy Andy, Inc., 228 NLRB 447
(1977), I disagree with my colleagues’ upholding the validity
of the Union’s certification in this case without consideration of
the claim that it engages in sex discrimination in its representa-
tion of employees.
As in Handy Andy, supra, my colleagues contend, among
other things, that certification of a discriminating union, or
issuance of a bargaining order, does not constitute prohibited
Government action and that other remedies are available under
both the National Labor Relations Act and other legislation to
combat the Union’s discriminatory practices. But, as I pointed
out in Handy Andy, the Government invalidly participates when-
ever it sanctions, assists, or supports private discrimination.
Certification of a union as the exclusive statutory bargaining
representative “confers substantial benefits,” as my colleagues
acknowledged in Handy Andy, and endows the union with public
rather than private rights. As I stated in Handy Andy, “Certi-
fication is thus an integral part of the representation function
. and is patently direct participation and assistance by a
Government agency . . . in the union’s discriminatory repre-
sentation.” The availability of other remedies does not legiti-
mize this unconstitutional conduct. The Constitution does not
permit an arm of the Government to participate in invidious
discrimination, against women or any other persons, until other
remedies come into play.**
23. Respondent claims that one result of the Union’s discrimina-
tory practices is to exclude women from employment as stationary
engineers. As a consequence, there would be no member of the
bargaining unit to seek enforcement of the Union’s “statutory obliga-
tion,” upon which my colleagues rely as a satisfactory substitute for
refusal to certify, “to represent all employees in the unit fairly.”
A60
APPENDIX E
UNITED STATES COURT OF APPEALS
For the District of Columbia Circuit
BELL & HOWELL COMPANY, >
Petitioner,
NATIONAL LABOR RELATIONS BOARD,
Respondent, No. 75-2002
LocaL 399, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-
CIO,
Intervenor. J
JUDGMENT
Before: BAZELON, MCGowan and Ross, Circuit Judges.
Tuis CAUSE came on to be heard upon a petition filed by Bell
& Howell Company, to review an order of the National Labor
Relations Board issued against said Petitioner, its officers, agents,
successors, and assigns, on September 29, 1975, as reaffirmed
by supplemental order dated June 24, 1977, and upon a cross-
application filed by the National Labor Relations Board to
enforce said order, as reaffirmed. The Court heard argument of
respective counsel on June 19, 1978, and has considered the
briefs and transcript of record filed in this cause. On January
8, 1979, the Court, being fully advised in tne premises, issued
its opinion granting enforcement of the Board’s order, as re-
affirmed.
ON CONSIDERATION WHEREOF, it is ordered and adjudged
by the United States Court of Appeals for the District of Colum-
an
A6é1
bia Circuit that the said order, as reaffirmed, of the National
Labor Relations Board in said proceeding be enforced, and that
Petitioner, Bell & Howell Company, Lincolnwood, Illinois, its
officers, agents, successors, and assigns, abide by and perform
the directions of the Board in said order, as reaffirmed, con-
tained.
/s/ Davip L. BAZELON
Circuit Judge, United States Court
of Appeals for the District of
Columbia Circuit
/s/ CARL McCGOwANn
Circuit Judge, United States Court
of Appeals for the District of
Columbia Circuit
/s/ ROGER ROBB
Circuit Judge, United States Court
of Appeals for the District of
Columbia Circuit
, A62
APPENDIX F
The Fifth Amendment to the United States Constitution pro-
vides in pertinent part:
No person shall . . . be deprived of life, liberty, or prop-
erty, without due process of law... .
Section 7 of the National Labor Relations Act, as amended
(29 U.S.C. § 157), provides:
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
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.
Section 8(a) (1), 8(a) (5), 8(b) (1), 8(b) (2) and 8(b) (3)
of the National Labor Relations Act, as amended (29 U.S. C.
§ 158), provide:
(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;
* * * * *
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the pro-
visions of section 159(a) of this title.
(b) It shall be an unfair labor practice for a labor or-
ganization or its agents—
(1) to restrain or coerce (A) employees in the
exercise of the rights guaranteed in section 157 of
A63
this title: Provided, That this paragraph shall not im-
pair the right of a labor organization to prescribe its
own rules with respect to the acquisition or retention
of membership therein; or (B) an employer in the
selection of his representatives for the purposes of
collective bargaining or the adjustment of grievances;
(2) to cause or attempt to cause an employer to
discriminate against an employee in violation of sub-
section (a) (3) of this section or to discriminate
against an employee with respect to whom member-
ship in such organization has been denied or termi-
nated on some ground other than his failure to tender
the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining mem-
bership;
(3) to refuse to bargain collectively with an em-
ployer, provided it is the representative of his em-
ployees subject to the provisions of section 159(a) of
this titie;
Section 9(a) and 9(c)(1) of the National Labor Relations
Act, as amended (29 U.S.C. § 159), provide:
(a) Representatives Cesignated or selected for the pur-
poses of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be
the exclusive representatives of 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: Provided, That any individual
employee or a group of employees shall have the right at
any time to present grievances to their employer and to
have such grievances adjusted, without the intervention of
the bargaining representative, as long as the adjustment
is not inconsistent with the terms of a collective-bargaining
contract or agreement then in effect: Provided further,
That the bargaining representative has been given oppor-
tunity to be present at such adjustment.
oo * * a *
(c) (1) Whenever a petition shall have been filed, in
accordance with such regulations as may be prescribed by
the Board—
A64
(A) by an employee or group of employees or any
individual or labor organization acting in their behalf
alleging that a substantial number of employees (i)
wish to be represented for collective bargaining and
that their employer declines to recognize their repre-
sentative as the representative defined in subsection
(a) of this section, or (ii) assert that the individual
or labor organization, which has been certified or is
being currently recognized by their employer as the
bargaining representative, is no longer a representa-
tive as defined in subsection (a) of this section; or
(B) by an employer, alleging that one or more in-
dividuals or labor organizations have presented to him
a claim to be recognized as the representative define
in subsection (a) of this section; :
the Board shall investigate such petition and if it has reason-
able cause to believe that a question of representation af-
fecting commerce exists shall provide for an appropriate
hearing upon due notice. Such hearing may be conducted
by an officer or employee of the regional office, who shall
not make any recommendations with respect thereto. If
the Board finds upon the record of such hearing that such
a question of representation exists, it shall direct an elec-
tion by secret ballot and shall certify the results thereof.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.