Opposition — Bell & Howell Co. v. National Labor Relations Board
Supreme Court brief1979
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No. 78-1640
In the Supreme Court of the fl witeets ust gp. CLERN E
OCTOBER TERM, 1978
BELL & HOWELL COMPANY, PETITIONER
Vv.
NATIONAL LABOR RELATIONS BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE NATIONAL LABOR RELATIONS
BOARD IN OPPOSITION
WADE H. McCREE, JR.
Solicitor General
Department of Justice
Washington, D.C. 20530
JOHNS. IRVING
General Counsel
JOHN E. HIGGINS, JR.
Deputy General Counsel
ROBERT E. ALLEN
Acting Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
RICHARD B. BADER
Attorney
National Labor Relations Board
Washington, D.C. 20570
INDEX
Page
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CITATIONS
Cases:
Bekins Moving & Storage Co., 211
Fa ate FE a ouch seadeoCcknbedacavenyerrscseneossessns ee
Handy Andy, Inc., 228 Ms
PUN Me MET” cath hcceasatdenaensenccnrsnciesenves a o% 8
NLRB vy. Mansion House Center
Management Corp., 473 F. 2d
st ae Shi: ALAC ag haM nt etabadmaveescebasss} sxsenees 6, 9
NLRB v. Sumter Plywood Corp., 535
F. 2d 917, cert. denied, 429 U.S.
| ERR onl aw adsaDeRRtaanabes aeNeTaReAaadansichessescoseabeves 10
Constitution and statute:
United States Constitution,
STU, PUNO Te a. wetcinnen nee . we 3
National Labor Relations Act, 29 U.S.C.
IS| et seq.:
Section &(a)(1), 29
I) NMED nek iaccacivdasacsessacccectecesses 3
Section &(a)(5), 29
SGT, METI ni aceclancdncsyccncecervsccnssses 3
Constitution and statute—Coniinued: |
Section 8(b)(1)A), 29 dn the Dupreme Cat ~ cits —
U.S.C. 158(b)(1)(A)
Section 8(b)(2), 29
U.S.C. 158(b)(2)
Section 8(b)(3), 29 No. 78-1640
ee SO oe 4 BeLL & HOWELL COMPANY, PETITIONER
OCTOBER TERM, 1978
V.
NATIONAL LABOR RELATIONS BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE NATIONAL LABOR’ RELATIONS
BOARD IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. Al-
A27) is not yet reported. The Board’s decision and
certification of representative (Pet. App. A28-A36) is
reported at 213 N.L.R.B. 407. The Board’s decision
and order in the unfair labor practice proceeding (Pet.
App. A37-A46) is reported at 220 N.L.R.B. 881. The
Board’s supplemental decision and order (Pet. App.
A47-A59) is reported at 230 N.L.R.B. 420.
JURISDICTION
The judgment of the court of appeals was entered
on January 30, 1979. The petition for a writ of
certiorari’ was filed on April 27, 1979. The jurisdiction
il | of this Court is invoked under 28 U.S.C. 1254(1).
(1)
QUESTION PRESENTED
Whether the Board properly determined that charges
of sex discrimination, raised by an employer in
Opposition to the certification of a union as a
collective bargaining representative, should be ad-
judicated in an unfair labor practice proceeding against
the union rather than in a hearing on the question of
certification.
STATEMENT
1. In April 1973, Local 399, International Union of
Operating Engineers (Local 399), petitioned the
National Labor Relations Board for a representation
election among the stationary engineers employed at
petitioner's plant in Lincolnwood, Illinois (Pet. App.
A3). The election resulted in seven votes for Local 399,
and one against (id. at A28). After the election,
petitioner filed a motion to disqualify Local 399 as the
collective-bargaining representative, alleging that it had
engaged in various practices that discriminated against
women (ibid.).' In September 1974, the Board certified
Local 399 as the collective bargaining representative. It
declined to adjudicate the issues raised by petitioner's
motion to disqualify the union on the basis of alleged
sex discrimination (Pet. App. A28-A34).2
'Petitioner charged generally that there was an absence of
female stationary engineers in the Chicago area which was
attributable to Local 399’s discriminatory policies. Petitioner also
charged that Local 399 had no female officers or business
representatives and that an infornial survey showed that it had no
female members. Petitioner further alleged that Local 399 awarded
certain death and maternity benefits on a sex-discriminatory basis
(Pet. App. A29).
2An earlier decision of the Board, Bekins Moving & Storage
Co., 211 N.L.R.B. 138 (1974), held that charges of discrimination
should be adjudicated in a certification proceeding. Members
Fanning and Penello dissented from the holding in Bekins,
concluding that such charges should be resolved in unfair labor
Petitioner refused to bargain with Local 399 and the
union filed unfair labor practice charges under Section
8(a)(1) and (5) of the Act, 29 U.S.C. 158(a)(1) and (5).
The Board granted summary judgment against
petitioner and entered a bargaining order (Pet. App.
A37-A46). In a supplemental decision and order (id. at
A47-A59), the Board reaffirmed its conclusion that
petitioner's sex discrimination ‘charges should be
presented in an unfair labor practice proceeding,
relying on its recent decision in Handy Andy, Inc., 228
N.L.R.B. 447 (1977). In Handy Andy, the Board (Member
Jenkins dissenting) over-ruled the Bekins case (discussed
in note 2, supra) and announced that it would no longer
consider charges of sex or racial discrimination before
certifying petitioning unions as collective bargaining
representatives.+
2. The court of appeals affirmed the Board's
decision (Pet. App. AI-A27), concluding that the
National Labor Relations Act does not require the
Board, “to consider allegations of discrimination prior
to certifying a victorious union, at least where the
proffered evidence of discrimination relates to past
union misconduct outside the bargaining unit that the
union seeks to represent” (id. at Al9-A20).4 The court
practice proceedings against the union or through proceedings
brought under Title VII of the Civii Rights Act. 211 N.L.R.B.
145-149. In the present case, members Penello and Fanning
adhered to their position in Bekins. Member Kennedy filed a
concurring opinion, concluding that “the Board should [not]
entertain an allegation that a labor organization discriminates on
the basis of sex in a precertification representation proceeding”
(id. at A32).
3For the convenience of the Court, we have appended to this
brief ‘a copy of the decision in Handy Andy.
‘The court added (Pet. App. A22 n.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
pointed out that “[pJermitting an employer to inject
allegations of discrimination into a_ representation
proceeding would tend to undermine [the protections]
of the Act. Often an employer's allegations will require
the Board to conduct extensive investigations. While
these inquiries are carried out, the empioyees’ choice of
a representative is thwarted, and the delay may prove
an effective tactic for eroding the union’s support in
the unit” (id. at AI5; footnote omitted). The court
added that the statutory purpose promptly to certify
elected bargaining representatives could be fully
accommodated with the goal of preventing discrimina-
tion through strict enforcement of the requirement of
fair representation by collective bargaining agents
under Sections 8(b)(I1)(A), 8(b)(2), and 8(b)(3) of the
Act, 29 U.S.C. 158(b)(1)(A), 158(b)(2), and 158(b)(3)
(id. at AlI17).
In rejecting petitioner's contention that _pre-
certification adjudication of claims of discrimination is
required to eliminate discriminatory practices, the court
of appeals noted that denial of certification was not a
remedy well suited to achieve that purpose (Pet. App.
Al7-A18; footnotes omitted):
First, denying certification or withholding a
bargaining order from a discriminatory union may
election, establish that the union will discriminate in the unit in
question.” The court noted that petitioner “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.” Moreover, while the Union's “gover-
ning instruments” provide for the payment of “maternity benefits
to ‘dependent wives’ but not ‘female employees’ and of a “death
benefit to ‘widows’ but not ‘widowers,’” petitioner “offered no
evidence that ‘widowers’ or ‘female employees’ had or would in
neg denied such benefits discriminatorily * * *” (id. at A23
n.46).
be an ineffective remedy for union discrimination.
These sanctions will have no effect on unions that
are strong enough to establish collective bargaining
relationships with employers without recourse to
the Board.
Second, these sanctions are at odds with the
remedial focus of the Board’s authority. At best,
denying certification or withholding a bargaining
order will prevent future discrimination in the unit
that the union seeks to represent. That sanction
provides no remedy for those who are already
victims of the union’s discrimination. * * * 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 unnecessarily duplicate
the functions of the EEOC. The broader scope of
the EEOC’s investigative and remedial authority,
its expertise 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
discrimination.
The court of appeals also rejected petitioner's
assertion that certification of a union charged with
prior acts of sex discrimination would “significantly
involve” the federal government in such discrimination
in contravention of the Fifth Amendment. The court
pointed out that “[fjar from authorizing and en-
couraging discrimination, certification subjects the
union to additional sanctions for any future discrimina-
tion,” including cease and desist orders and orders for
moneiary compensation for victims of discrimination
(id. at A2\l).
ARGUMENT
1. The decision below is the first decision of a court
of appeals to review the rule prescribed by the Board
in Handy Andy, Inc., 228 N.L.R.B. 447 (1977). Under
that decision, which was applied by the Board in the
present case, charges of discrimination may not be
adjudicated at the certification stage, but rather must
be presented in unfair labor practice proceedings before
the Board, in Equal Employment Opportunity Com-
mission proceedings, or in private litigation brought by
victims of discrimination. The Board has determined
that this approach will provide effective sanctions
against discrimination without retarding the certifica-
tion of elected bargaining representatives and without
interfering with the statutory right of employees to
bargain collectively.
Although, as petitioner contends (Pet. 6-7), the
decision below conflicts with the decision of the Eighth
Circuit in NLRB vy. Mansion House Center Manage-
ment Corp., 473 F. 2d 471 (8th Cir. 1973),5 that
decision was rendered without benefit of the Board’s
analysis in Handy Andy. The court in Mansion House
Center had no opportunity to consider the adequacy of
the rationale that now has been delineated by the
Board for its procedure to accommodate the rights of
fair representation and self-determination within the
bargaining unit. If, as Handy Andy demonstrates, both
of those rights can be adequately protected through the
procedure that the Board has prescribed, there is little
basis for inferring that the Eighth Circuit will continue
to adhere to its interpretation in Mansion House
‘In Mansion House Center, the Eighth Circuit concluded that
charges of racial discrimination required a hearing when raised by
employers in the circumstances presented here.
Center. For this reason, we believe that granting
certiorari to resolve the conflict between the Eighth
Circuit and the D.C. Circuit is unnecessary at the
present time. If, after the Eighth Circuit has had:
occasion to consider the Board’s rationale in Handy
Andy, that court agrees with the D.C. Circuit that the
Handy Andy rationale is sustainable, further review by
this Court will not be required.
2. In the case of Bekins Moving & Storage Co., 211
N.L.R.B. 138 (1974), the Board adopter a_ rule
substantially similar to that of the Eighth Circuit in
Mansion House Center. In Bekins, the Board conclud-
ed that certification of a labor organization shown to
be engaged in a pattern or praciice of invidious
discrimination would be tantamount to governmental
approval of such conduct. /d. at 139. For that reason,
the Board concluded that a pre-certification inquiry
into the union’s willingness to represent employees on
a fair and equal basis was required by the Fifth
Amendment. Significantly, however, the Board stated
that its views on this question were in a state of flux
and it declined to announce final substantive or
procedural rules: “[a]fter 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.” /d. at 141.°
Continued study of the problem raised in the Bekins
case led the Board to overrule that decision in Handy
Andy, Inc., supra. In Handy Andy, the Board
‘The Board also pointed out the possibility that in some cases
“correction of such statutory violations [may] best [be] left to the
expertise of other agencies or to remedial orders less draconian
than the total withholding of representative status.” /d. at 140.
294-473 O - 79 -2
concluded that “the policies of the Act are better
effectuated by considering allegations that a_ labor
organization practices invidious discrimination in
appropriate unfair labor practice rather than represen-
tation proceedings.” 228 N.L.R.B. at 448. The Board
acknowledged its obligation to eliminate discriminatory
practices, but noted that, as a general matter, unfair
labor practice proceedings are better adapted to
adjudicate charges of discrimination than hearings at
the certification stage. The Board also emphasized the
increased procedural safeguards available in unfair
labor practice proceedings: “issues involving alleged
invidious discrimination by a labor organization should
be considered in an adversary proceeding in which the
accused union is accorded the full spectrum of due
process, including - particularly the right of judicial
review.” /d. at 454.
Although it overruled the Bekins case, the Board
noted in Handy Andy that it “has considered, and will
continue to consider, in representation proceedings the
possible impact of clearly existing invidious discrimina-
tion within the unit at issue or of appeals to prejudice
directed at employees in such unit in cases where an
inquiry into these matters is necessary to protect the
fairness of the election process.” /d. at 454. In the
present case, petitioner raised no charge of invidious
conduct by the union within the collective bargaining
unit.
In affirming the Board’s order in the present case,
the court of appeals correctly noted that the Handy
Andy rationale effectively guarantees the rights of fair
representation and self-determination in the bargaining
unit (Pet. App. A19; footnotes omitted):
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
** * The duty of fair representation applies to all
exclusive bargaining representatives, not simply to’
those who use the 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 discrimination. 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 discrimina-
tion, making the victims whole, and, at the same
time, providing more protection for the employees’
right of self-determination.
3. In reaching a different result in Mansion House
Center, supra, the Eighth Circuit concluded that
“constitutional limitations on the Board's process
require recognition of a charge of racial discrimination
as an appropriate ground of inquiry where a union's
representative capacity is questioned” (473 F. 2d at
474). The basis of that holding was the court’s belief
that “[f]ederal complicity through recognition of a
discriminating union serves not only to condone the
discrimination, but in effect legitimatizes and
perpetuates such invidious practices” (id. at 477). As
the Board’s analysis in Handy Andy demonstrates,
however, the right of fair representation sought to be
protected by the Eighth Circuit can be vindicated most
effectively in an unfair labor practice proceeding. By
certifying the elected representative and_ thereafter
strictly enforcing the duty of fair representation, the
Board does not legitimatize or perpetuate discrimina-
tion; to the contrary, it increases the likelihood that it
10 11
P tea P . ; CONCLUSION
will be eliminated. In these circumstances, it 1s
reasonable to anticipate that the Eighth Circuit may The petition for a writ of certiorari should be
well defer to the balance struck by the Board in denied.
Handy Andy, a case decided several years after Respectfully submitted.
Mansion House Center was handed down. There is
accordingly no need at this time for this Court ‘to
resolve the conflict between the decision below and the |
decision in Mansion House Center.’ JOHN S.. IRVING
General Counsel
WapE H. McCree, JR.
Solicitor General
JoHN E. HIGGINS, JR.
* Deputy General Counsel
ROBERT E. ALLEN
Acting Associate General Counsel
NorRTON J. COME
Deputy Associate General Counsel
RICHARD B. BADER
Attorney
National Labor Relations Board
May 1979
’NLRB vy. Sumter Plywood Corp., 535 F. 2d 917 (Sth Cir.
1976), cert. denied, 429 U.S. 1092 (1977), does not conflict with
the decision below, as the D.C. Circuit recognized (Pet. App. A20
n.40). Sumter concluded that, while the issue of fair representa-
tion might be appropriate “for the Board to consider in
certification proceedings or as an affirmative defense in a refusal
to bargain proceeding” (535 F. 2d at 930), the “ ‘drastic step’ of
refusing to certify a union should be taken only in response to a
strong demonstration [that] the union has in fact engaged in a
pattern of racially discriminatory practices, and is likely to
continue such practices” (id. at 931). The court below refrained
from deciding “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 seeks certification”
(Pet. App. A20 n.40). See also note 4, supra.
DOJ-1979-05
la
APPENDIX
Handy Andy, Inc. and Mason M. New, Petitioner,
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
General Drivers & Helpers Local Union No. 657.
Case 23-RD-324
February 25, 1977
DECISION AND CERTIFICATION OF |
REPRESENTATIVE
Pursuant to a petition for decertification filed on
May 14, 1974, and a Stipulation for Certification
Upon Consent Election approved May 28, 1974, by the
. Regional Director for Region 23 of the National Labor
Relations Board, an election by secret ballot was
conducted on June 14, 1974, under the direction and
supervision of the said Regional Director, among the
employees in the appropriate bargaining unit set forth
in the stipulation. At the conclusion of the counting of
the ballots, a tally of ballots was prepared and served
on the parties which showed that, of approximately
198 eligible voters, 175 cast ballots, of which 108 were
cast for, and 66 against, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, General Drivers & Helpers Local Union No.
657, herein called the Union. There was one challenged
ballot, an insufficient number to affect the results.
Thereafter, the Employer filed a timely objection to the
issuance of certification of the Union as bargaining
representative.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation and,
on August 19, 1974, issued and duly served on the
parties his Report and Recommendation on Objection,
in which he recommended that the Employer's
objection be overruled and that the Union be certified
as the exclusive bargaining representative of the
employees in the unit involved herein. Thereafter, the
Employer filed timely exceptions to the Regional
Director’s Report.
On December 29, 1975, the Board, having deter-
mined that this and a number of other cases involving
alleged race and sex discrimination on the part of
labor organizations presented issues of importance in
the administration of the National Labor Relations
Act, as amended, scheduled oral argument in this and
other cases! limited to all issues arising from N.L.R.B.
v. Mansion House Center Management Corporation,
473 F. 2d 471 (C.A. 8, 1973), and Bekins Moving &
Storage Co. of Florida, Inc., 211 NLRB 138 (1974),
Members Fanning and Penello dissenting. Oral
arguments were heard on February 2, 1976. Amici
curiae arguments were also heard at that time.?
Upon the entire record in this case, including the
exceptions and oral arguments, the General Counsel's
statements of position, and the amici briefs, the Board
finds:
1. The Employer is engaged in commerce within the
meaning of Section 2(2) of the Act and it will
'Trumbull Asphalt Company, Inc., Case 25-RC-5719; Bell &
Howell Company, Case 13-CA-13680; and Murcel Manufacturing
Corporation, Cases 10-CA-10122, 10-CA-10152, and 10-RC-9502.
?The American Federation of Labor and Congress of Industrial
Organizations and the Chamber of Commerce of the United
States submitted briefs and presented oral argument as amici
curiae.
2a
effectuate the purposes of the Act to assert jurisdiction
herein. :
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4 The parties agree, and we find, that the following
unit is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All warehouse employees, dock workers, truck
drivers, sanitation drivers and helpers, shipping
and receiving clerks, warehouse clerical employees,
garage mechanics, fork lift and _ pallet jack
maintenance employees and custodial employees
employed at the Employer’s grocery warehouse,
produce warehouse, Harry Tappan _ Institutional
Warehouse and meat products warehouse located
in Bexar County, Texas, excluding all other
employees including all maintenance and construc-
tion shop employees, poultry processing plant
employees, bakery employees, office clerical
employees, guards, watchmen and supervisors as
defined in the Act.
5. The Employer's sole objection to the issuance of a
certification to the Union is_ that
[t]he Union ... practices invidious discrimination
by engaging in practices such as excluding persons
from membership on the basis of race, alienage or
national origin and/or is shown to have a
propensity to fail to represent employees fairly.
3a
294-473 O-79 +3
The Employer contends that the Union’s alleged
discriminatory practices preclude it from being certified
as an exclusive bargaining representative, citing Bekins
Moving & Storage Co. of Florida, Inc., supra. As
evidence in support of its objection, the Employer
relies primarily upon several decisions by the United
States Court of Appeals for the Fifth Circuit. In these
cases, the court held, inter alia, that certain seniority
provisions of the National Master Freight Agreement,
to which the Union is a party together with various
employers (but not the Employer herein), were unlawful
because they perpetuated the effects of the employers’
past discrimination. Consequently, the court found that
the Union, by being party to such an agreement, had
violated Title VII of the Civil Rights Act of 1964.4
The Employer’s reliance on Bekins is based on the
majority’s holding in that case that the Board is
constitutionally required to consider issues raised by an
objection grounded on alleged invidious discrimination
prior to issuance of a Board certification of represen-
tative.’ As the majority noted in Bekins, however, the
‘Rodriquez, et al. v. East Texas Motor Freight, Southern
Conference of Teamsters and Teamsters Local 657, 505 F. 2d 40
(C.A. 5, 1974); Herrera et al. v. Yellow Freight System, Inc., 505
F. 2d 66 (C.A. 5, 1974); Resendis et al. v. Lee Way Motor
Freight, Inc., SOS F. 2d 69 (C.A. 5, 1974).
442 U.S.C. §2000e to 2000e-17 (Supp. Il, 1972), amending 42
U.S.C. §2000e to 2000e-15 (1964).
‘Members Fanning and Penello dissented on grounds that
withholding certification as exclusive representative from a union
which has won a duly conducted Board election is neither
required by the Constitution nor permitted by the provisions of
the Act and that such action would undercut rather than
4a
question of whether a labor organization's invidious
discrimination constitutes objectionable — conduct
warranting withholding certification was a novel issue
and one on which the Supreme Court has not ruled.
We now conclude that the policies of the Act are
better effectuated by considering allegations that a
labor organization practices invidious discrimination in
appropriate unfair labor practice rather than represen-
tation proceedings. Accordingly, for the reasons set
torth hereafter, the Bekins decision is overruled.°
In our view neither the fifth amendment to the
Constitution nor the National Labor Relations Act, as
amended, requires the Board to resolve questions of
alleged invidious discrimination by a labor organization
before it may lawfully certify the union as the exclu-
sive bargaining representative of employees in an
appropriate unit. Indeed, it appears to us that the
contrary is true; namely, that the Board is _ not
authorized to withhold certification of a _ labor
strengthen the Federal Government's efforts to eliminate the
discriminatory practices in_ issue.
Member Kennedy in his concurring opinion agreed that issues
involving alleged discrimination on the basis of race, alienage, or
national origin are appropriately raised in a_ precertification
inquiry, but expressed his view that, although the Board is
constitutionally required to consider such issues prior to certifying
a labor organization as an exclusive bargaining representative,
there is no similar constitutional requirement concerning alleged
discrimination on the basis of sex. Our discussion herein relates
to all allegations of invidious discrimination, assuming, without
deciding in this case, that the same considerations necessarily
apply.
‘Members Fanning and Penello join in overruling the Bekins
decision for the same reasons that led them to dissent therefrom
and for such additional considerations as are expressed in this
decision.
Sa
organization duly selected by a majority of the unit
employees. In so holding we are fully cognizant of our
continuing obligation under the statute to police the
conduct of certified unions as it relates to their duty of
fair representation. Issues relating to whether a union
engages in unlawful race, sex, or other invidious forms
of discrimination have historically been considered by
the Board in the context of unfair labor practice
proceedings. Such a_ proceeding, for the reasons
discussed below, continues to be the appropriate
vehicle for resolving such issues and for devising the
appropriate remedies for unlawful discrimination
including revocation of certification. This route
recognizes the substantive and procedural differences
between representation and unfair labor practice
proceedings and affords the charged party the full
panoply of due process of law without at the same time
denying or delaying the employees’ right to the services
of their designated bargaining agent.’
The majority in Bekins concluded that precertifica-
tion consideration of alleged invidious discrimination
by labor organizations is required by the fifth
amendment to the Constitution because the Board may
not lawfully bestow its certification upon a _ union
which in fact discriminates on the basis of such
considerations. The majority stated that, under the
’The question involved here has been analyzed and discussed at
length with clarity and distinction by Mr. Richard Bader in his
law review note, “The Impact of De Facto Discrimination by
Unions on the Availability of NLRB > Bargaining Orders,” 47
Southern California Law Review 1353 (1974). Our discussion
below includes many of his observations. Subsequent to the
publication of the article and graduation from law school, Mr.
Bader became and is now a member of the staff of the National
Labor Relations Board.
6a
principle enunciated by the Supreme Court in Shelley
v. Kraemer*® and subsequent cases,? were the Board, as
a Federal agency, to confer the benefits of certification
on a labor organization which practices unlawful
discrimination “the power of the Federal Government
would surely appear to be sanctioning, and indeed
furthering, the continued practice of such discrimina-
tion, thereby running afuul of the due process clause
of the fifth amendment.”'?
The foregoing statement misconstrues the “state
action” doctrine!! as defined in Shelley v. Kraemer,
supra, and its progeny. In Shelley, petitioners were
blacks seeking to buy property covered by private
restrictive covenants which prohibited occupancy of the
covered premises by persons “not of the Caucasian
race.” The state courts had enforced the covenants
and, consequently, had found that petitioner could not
obtain valid title. The Supreme Court held that the
agreement, standing alone, did not violate any
constitutional right of petitioners, emphasizing that:
[T]he principle has become firmly embedded in
our constitutional law that the action inhibited by
the [equal protection clause] of the Fourteenth
8334 U.S. 1 (1948).
%See, e.g., Burton vy. Wilmington Parking Authority, 365 U.S.
715 (1961); Evans v. Newton, 382 U.S. 296 (1966); Evans v.
Abney, 396 U.S. 435 (1970).
0211 NLRB at 139.
''Although the equal protection clause does not by its terms
apply to the Federal government, it is well settled that the due
process clause of the fifth amendment imposes the same
restrictions on Federal action that the fourteenth amendment
imposes on state action. Bolling v. Sharpe, 347 U.S. 497, 499
(1954).
7a
Amendment is only such action as may fairly be
said to be that of the States. That Amendment
erects no shield against merely private conduct,
however discriminatory or wrongful. [Footnote
omitted.]!?
The Court concluded, however, that enforcement of the
covenants by state courts was state action subject to
the equal protection clause. In so concluding, the
Corit commented:
It is clear that but for the active intervention of
the state courts, supported -by the full panoply of
state power, petitioners would have been free to
occupy the properties in question without restraint.
These are not cases . . . in which the States
have merely abstained from action, leaving private
individuals free to impose such discriminations as
they see fit. Rather, these are cases in which the
States have made available to such individuals the
full coercive power of government to deny to
petitioners, on the grounds of race or color, the
enjoyment of property rights in premises which
petitioners are willing and financially able to
acquire and which the grantors are willing to sell.
[Emphasis supplied.]!>
Thus, the prohibited state action in Shelley v. Kraemer
was the affirmative enforcement by the State of a
private agreement to discriminate.
Similarly, in Peterson et al. v. City of Greenville,'4
10 blacks were arrested for trespassing after refusing to
2334 U.S. at 13.
19334 US. at 19.
4373, U.S. at 244 (1963).
8a
leave a segregated lunch counter. In reversing their
convictions, the Supreme Court noted that a_ local
ordinance requiring segregation at lunch counters had
removed the decision to segregate from the sphere of
private choice,'5 and thus sufficiently involved the State
in the counter manager's discrimination to violate the
equal protection clause.'® Thus, the case stands for the
principle that a governmental body which requires a
private party to discriminate runs afoul of the fifth or
fourteenth amendments.
The governmental action doctrine, as applied to
statutes and regulations, was further expanded in
Reitman v. Mulkey'’ to extend to mere “authorization”
of private discrimination. In that case, an amendment
to the California state constitution, which prohibited
any governmental agency within the State from
abridging the absolute discretion of any property
owner to sell or lease, or to refuse to sell or lease,, his
property to anyone for any reason, was declared
unconstitutional.'’ Although purporting to remain
neutral on the question of private racial discrimination
in housing, the amendment repealed two open housing
statutes, and erected a barrier to attaining any such
legislation in the future. The Court held that, taken in
the context of the conditions and attitudes of its
passage, the amendment “was intended to authorize,
and does authorize, racial discrimination in the housing
15373 U.S. at 248.
16373 U.S. at 248.
17387 U.S. 369 (1967).
“The Court “accepted” the ruling of the California Supreme
Court, which had so held. 387 U.S. at 381.
9a
market.”!? Thus, the prohibited state action in Reitman
was authorization by the State of private discrimina-
tion.
Finally, in Moose Lodge No. 107 v. Irvis,2% a state
liquor ‘control agency, in granting liquor licenses,
promulgated numerous regulations with which licensees
had to comply. One of these required that “[e]very
club licensee shall adhere to all of the provisions of its
Constitution and By-laws.”2! Moose Lodge had a
provision in its constitution which! denied membership
to blacks. The trial court had relied on the pervasive
regulation of the club’s activity by the liquor control
board in ruling that the agency was sufficiently
implicated with the discriminating club to violate the
fourteenth amendment. But the Court, in analyzing the
amount of government involvement necessary to raise
constitutional issues, rejected the trial court’s reasoning,
noting that “[hJowever detailed this type of regulation
may be in some patticulars, it cannot be said to in
any way foster or encourage racial discrimination.”22
(Emphasis supplied.) The Court held that only one
regulation which had the effect of specifically requiring
the club to discriminate was sufficiently involved with
the private club’s racially discriminatory policy to run
afoul of the Constitution. None of the other
regulations governing the operation of Moose Lodge
were so entwined with the racial policies as to trigger
the equal : protection clause, because they did not
19387 U.S. at 381.
0407 U.S. 163 (1972).
21407 U.S. at 177.
2407 U.S. at 176-177.
10a
specifically support the racial discrimination.2} This
distinction, which is of obvious importance, was stated
by the Court as follows:
The Court has never held, of course, that
discrimination by an_ otherwise private entity
would be violative of the Equal Protection Clause
if the private entity receives any sort of benefit
or service at all from the State, or if it is subject
to state regulation in any degree whatever
[S]Juch a holding would utterly emasculate the
distinction between private as distinguished from
state conduct .... Our holdings indicate that
where the impetus for the discrimination is private,
the state must have “significantly involved itself
with invidious discriminations” [citation omitted]
in order for the discriminatory action to fall
within the ambit of the constitutional prohibition.
[Emphasis supplied.]?4
Thus, to summarize, while “to fashion and apply a
precise formula for recognition of state responsibility
under the Equal Protection Clause is an ‘impossible
task,’ "25 it is clear that governmental bodies cannot be
“significantly involved” in discrimination. Such involve-
ment has been found in the past where government
“required” private parties to discriminate, “enforced”
private discrimination, “authorized” private discrimina-
tion, or “fostered and encouraged” discrimination.
Thus, the issue is whether a sufficiently close nexus ts
established between governmental action and actual
discrimination by a private party; mere involvement
23407 U.S. at 177.
4407 U.S. at 173.
2sBurton v. Wilmington Parking Authority, supra, 365 U.S. at
722.
lla
294-4738 O-+ 79 = 4
with a private party who discriminates is not enough.
For the reasons set forth below, we conclude that there
is no such nexus between the Board's certification
and any -discrimination undertaken by a union which
has received such a _ certification.
We recognize, of course, that certification of a labor
organization confers substantial benefits. The Board
does not, however, by certifying a labor organization,
place its imprimatur on all the organization’s activity,
lawful or otherwise. On the contrary, a certification is
neither more nor less than an acknowledgement that a
majority of the employees in an appropriate bargaining
unit have selected the union as their exclusive
bargaining representative.2° The choice of representative
is made by the employees, and may not be exercised
by this Board:
For, it must be remembered that, initially, the
Board merely provides the machinery whereby the
desires of the employees may be ascertained, and
2%»Of course, certification is based on recognition that the
representative qualifies as a labor organization within the meaning
of Sec. 2(5) of the Act. In this regard, we agree with the
dissenters in Bekins that the majority in that case reached the
anomalous result that a union may be a “labor organization”
entitled to a place on the ballot and then, after the election, be
“disqualified” from receiving certification on grounds that it
practices invidious discrimination. This anomaly may have
unfortunate consequences if the union wins the election, for, if a
“disqualified” union is not a “labor organization” then the
prohibitions of Sec. 8(b) do not apply to it. If the winning but
“disqualified” union is a “labor organization,” however, then the
election is a valid one and, consequently, the employees will not
only have been denied the right to be represented by their chosen
bargaining agent but will also be denied the opportunity to vote
for any representative for another year. 211 NLRB at 147-48, fn.
43.
12a
the employees may select a “good” labor organiza-
tion, a “bad” labor organization, or no labor
organization, it being presupposed that employees
will intelligently exercise their right to select their
bargaining representative.2’
Clearly, certification does not constitute enforcement
or even approval of a labor organization's activities,
and should not be construed as “state action” restricted
by the fifth amendment.
Indeed, a union’s status as the bargaining represen-
tative gives it no right or authority to establish Airing
restrictions based on membership restrictions
whether or not such membership restrictions are
legitimate for other purposes. For, under the Act, it is
an unfair labor practice for a labor organization, whether
or not it is certified, to cause or attempt to cause
employers to hire o1. the basis of membership or
nonmembership in a union. The Act further provides
appropriate means to remedy such an unfair labor
practice. Furthermore, a_ bargaining representative's
right to enter into union-security agreements with
employers conditioning~ continued. employment on
union membership or payment of agency shop fees is
dependent on the availability of membership in the
Oargaining representative to any employees who choose
to join. Similarly, if access to a union hiring hall is
limited to union members, the exclusive hiring hall
agreement violates the Act. Further, any membership
policy of a union which would tend to limit job
opportunities for minorities is barred by Title VII of
the Civil Rights Act of 1964, as amended. Finally, the
duty of fair representation2® prevents unions from using
: Hy Plastics Manufacturing Corporation, 136 NLRB 850, 851
f ; ; ae
**See discussion concerning the duty of fair representation,
infra.
13a
their bargaining representative powers in a_ dis-
criminatory manner. Thus, while use of Board
processes and the Board's certification may have helped
a union gain the power of bargaining representative
established by the Act, the union has not been
authorized to discriminate in the exercise of those
powers. The Act and the Board’s implementation of it
can hardly be said to be “significantly involved” in the
union’s discrimination, since the duty of fair represen-
tation in its various forms specifically prohibits a
union from practicing unlawful discrimination under
the authority of the Act. Therefore, the Board, while it
may extend the Act’s protection to the union, is not
involved in the union’s discriminatory activities, a
requirement of the governmental action doctrine.
This view is buttressed by the indisputable fact that
the Act predicates a union’s bargaining representative
Status on its being chosen by a majority of the
employees in the bargaining unit, not by the Board.
Recognition of that status by the Board, through
certification and/or a bargaining order, merely means
that the Board is satisfied that a majority of the
workers in the unit have chosen this union as their
bargaining representative and that therefore the
employer is statutorily required to bargain with it. The
Board is substantially analogous in this respect to the
Pennsylvania Liquor Control Board in the Moose
Lodge case, about which the Court noted:
Unlike the situation in Public Utilities Comm. v.
Pollak, [citation omitted], where the regulatory
agency had affirmatively approved the practice of
the regulated entity after full investigation, the
Pennsylvania Liquor Control Board has _ neither
l4a
approved nor endorsed the racially discriminatory
practices of Moose Lodge.2? [Emphasis supplied.]
Indeed, the courts have found that an exclusive bargain-
ing representative is subject to the duty of fair represen-
tation which prevents that union from using its position
to unlawfully discriminate. The Congress has also
taken steps to eliminate such discrimination based on
race, etc., by enacting Title VII of the Civil Rights Act
of 1964, as amended. Title VII, as implemented by the
Equal Employment Opportunity Commission, performs
the very function—using the same test for
discrimination—which the Eighth Circuit Court of
Appeals in N.LR.B v. Mansion House Center
Management Corporation®®» would require of the
Board.4! The Mansion House court was thus not
requiring the Government merely to meet constitutional
requirements, but to meet them in a particular way
which the court preferred to the method Congress has
chosen. This view is supported by the Supreme Court’s
recent decision in Washington, Mayor of Washington,
D.C. v. Davis,?2 in which the Court held that the
standard for determining whether governmental action
constituics discrimination proscribed by the Constitu-
tion is not the same as the test to be utilized under
Title VII.
2*Moose Lodge, supra, 407 U.S. at 175 fn. 3.
0473 F. 2d 471 (C.A. 8, 1973). In that case, the court held that
the remedial machinery of the Act could not be made available to
a labor organization which engaged in unlawful racial discrimina-
tion.
‘In fact, in supporting its test for racial discrimination in
Mansjon House, the court cited almost exclusively Title VII
cases.
32426 U.S. 229 (1976).
15a
A logical consequence of the Bekins constitutional
determination is the conclusion that in their respective
areas of authority the Federal agencies have overlap-
ping responsibility for remedying any invidious
discrimination by private parties.’ For example, one
might argue that the Interstate Commerce Commission
may not constitutionally approve a route of a common
carrier which engages in discriminatory hiring practices
or that the Securities and Exchange Commission is
prohibited from approving a prospectus of a corpora-
tion which engages in such practices. This argument
was recently rejected by the Supreme Court in
National Association for the Advancement of Colored
People v. Federal Power Commission,** in which the
Court held that the FPC does not have the authority
to promulgate rules prohibiting its regulatees from
engaging in discriminatory employment practices, but
that the Commission does have authority to consider
the consequences of employment discrimination § in
performing its mandated regulatory functions. In that
case, the Court discussed extensively the petitioner's
argument that the references to the “public interest” in
the Gas-.and Power Acts*> authorized “if indeed it did
The Bekins conclusion further implies that Congress does not
have the power to vest jurisdiction over claims of racial or other
invidious discrimination exclusively in a single agency, the Equal
Employment Opportunity Commission. This conclusion is clearly
wholly untenable. See 42 U. Chi. L. Rev. 1, 10 (1974).
4425 U.S. 662 (1976).
See e.g., 16 U.S.C. §824(a): “the business of transmitting and
selling electric energy for ultimate distribution to the public is
affected with a public interest.” Similarly, Sec. I(b) of the
National Labor Relations Act, as amended, refers to the policy of
the Act to “define and proscribe practices on the part of labor
and management which affect commerce and are- inimical to the
general welfare.”
l6a
not require” the FPC to promulgate such _ rules.
Rejecting this argument, the Court emphasized that it
was necessary to look to the purposes of the Gas and
Power Acts and:
. that the principal purpose of those Acts was
to encourage the orderly development of plentiful’
supplies of electricity and natural gas at reasonable
prices. While there are undoubtedly other sub-
sidiary purposes contained in these Acts, the
parties point to nothing in the Acts~ or their
legislative histories to indicate that the elimination
of employment discrimination was one of the
purposes that Congress had in mind when it
enacted this legislation. The use of the words
“public interest” in the Gas and Power Act is not
a directive to the Commission to seek to eradicate
discrimination, but, rather, is a charge to promote
the orderly production of plentiful supplies of
electric energy and natural gas at just and
reasonable rates. [Footnotes omitted.]>°
Mr. Chief Justice Burger, in a concurring opinion,
further stated:
If Congress had mandated duplicative regulation,
the result, however inefficient, would be none of
our concern. But Congress did not do so. It
centralized responsibility in the Equal Employment
Opportunity Commission. To the extent that the
judiciary orders administrative responsibility to be
diffused, congressional intent is frustrated,
regulated industries are subjected to the commands
of different voices in the bureaucracy, and the
agonizingly long administrative process grinds even
46425 U.S. at 669-670.
17a
more slowly. To suggest, for example, that the
FPC could deny a license on account otf a
regulatee’s discriminatory employment practices . .
is to thrust the Commission into a complex,
volatile area for which Congress has already
assigned authority to the EEOC. [Emphasis in
original. }°’
Furthermore, as Professor Meltzer of the University
of Chicago has noted,3* “An administrative agency
generally does not have jurisdiction to invalidate
important elements of its enabling legislation.” In
Johnson, Administrator of Veterans’ Affairs v. Robin-
son, Mr. Justice Brennan, speaking for the majority
of the Court, quoted with approval Mr. Justice
Harlan’s concurring opinion in O6estereich v. Selective
Service System Local Board No. Il, Cheyenne,
Wvoming,® for the proposition that “[a]djudication of
the constitutionality of congressional enactments has
generally been thought beyond the jurisdiction of
administrative agencies.”*' In our view, the Bekins
majority ignored this principle. For, by concluding that
“[t]o construe the mandatory language of the statute
without reference to . . . constitutional issues would
cause the statute itself to fall afoul of
constitutional limitations,”4? the majority members in
7425 U.S.. at 673-674.
‘*“The National Labor Relations Act and Racial Discrimination:
The More Remedies, the Better?” 42 U. Chi. L. Rev. 1, 20, fn. 93
(1974).
W415 U.S. 361 (1974).
393 U.S. 233, 242 (1968).
41415 U.S. at 368.
42211 NLRB at 139.
18a
effect arrogated to this Board the power to determine
the constitutionality of mandatory language in the Act
we administer, a power that the Supreme Court has
indicated we do not have. This view is_ further
reinforced by the Supreme Court’s recent decision in
Hudgens v. N.L.R.B.3 A majority of the Court there
held that certain consumer picketing by a_ labor
organization was not protected by the first amendment
and that, therefore, the Act was the sole standard
to be applied in determining whether or not the
activity was protected. In this regard, the Court noted
the following with respect to the Board’s authority:
Under the Act the task of the Board, subject to
review by the courts, is to resolve conflicts
between § 7 rights and private property rights,
“and to seek a proper accomodation between the
two.” Central Hardware Co. v. N.L.R.B., 407 U.S.
539, 543. What is “a proper accommodation” in
any situation may largely depend upon the content
and the context of the § 7 rights being asserted.
The task of the Board and the reviewing courts
under the Act, therefore, stands in conspicuous
contrast to the duty of a court in applying the
standards of the First Amendment, which requires
“above all else” that expression must not be
restricted by government “because of its message,
its ideas, its subject matter, or its content.”44
Issuance of a certification to a union which has won
a fairly conducted valid election is mandated by the
Act. As the dissenters in Bekins emphasized:
Congress in Section 9(c)(l) directed that
“[w]henever a petition has been filed in accordance
4424 U.S. 507 (1976).
44424 U.S. at 521.
19a
with such regulations as may be prescribed by the
Board . . . the Board shall investigate such
petition and if it has reasonable cause to believe
that a question concerning representation affecting
commerce exists shall provide for an appropriate
hearing. ... If the Board finds upon the record of
such hearing that such a question of representation
exists, it shall direct an election by secret ballot
and shall certify the results thereof.” (Emphasis
supplied.) This language is language of require-
ment. Absent unfairness in the election itself, the
section commands the Board to issue a certifica-
tion of representative to the winning labor
organization. [Footnotes omitted.]*5
We conclude that the Bekins doctrine will
significantly impair the national labor policy of
facilitating collective bargaining, the enforcement of
which is our primary function. First, the workers in
the unit will be denied the “right guaranteed them by
Section 7 of the Act to bargain collectively through
representatives of their own choosing,”46 which could
be the only effective bargaining representative avail-
able to them.
Indeed, even a union which practices some unlawful
discrimination may be the best one available in the
opinion of the workers in the unit, who are given the
right to decide for themselves by the Act. Even if
minority members of the unit are convinced that the
union will fairly represent them, and vote for the
union under the Bekins approach, a bargaining order
4211 NLRB at 147.
“See Bekins, 211 NLRB at 148, dissenting opinion.
20a
”
may still have to be denied.4’? Yet, the minority
workers might not be helped by keeping the union out,
since they will then be at the mercy of their employer
who has no duty of fair representation to fulfill, who
may act to the detriment of a// the workers, and who
may also discriminate against minorities. In short, a
union that has discriminated actively in the past and
still has a racial imbalance may be preferable for
minority workers to no union at all. Second,
employers faced with the prospect of unionization will
be provided and have been provided under the Board’s
Bekins doctrine with an incentive to inject charges of
union racial discrimination into Board certification and
bargaining order proceedings as a delaying tactic in
order to avoid collective bargaining altogether rather
than to attack racial discrimination.
Not only does the Bekins approach impair the
national labor policy favoring collective bargaining, but
it is ineffective in implementing an antidiscrimination
policy. Denying certification and bargaining orders to
discriminating unions may seem to be an effective
sanction as the status of bargaining representative is
the source of a union’s power. However, many unions
have no need of Board aid to gain or keep the
position of bargaining representative. Most unions do
not resort to certification elections to establish their
majority status, and many unions which are certified
would not be harmed by losing their certifications.
Entrenched unions, which already have well-established
bargaining relationships with employers, need no aid
47In Mansion House, the one black member of the bargaining
unit’ signed an authorization card. The Board thought this was
significant, but the court ignored this fact. 473 F. 2d at 475.
2la
from the Board in maintaining their positions.
Powerful unions, which can make effective use of such
traditional self-help remedies as striking and picketing
to force employers to bargain, have no need for
bargaining orders. These powerful and entrenched
unions are the ones with the least natural incentive to
lower racial barriers, because they do not have to
worry .about attracting votes at representation elections
as the weaker unions must. Thus, the Bekins remedies
fail to reach those unions likely to be the worst
offenders. In addition, Bekins, by increasing the
duration of representation cases, would create problems
in applying Section 8(b7)(C) to picketing by unions
whose representational eligibility is being litigated or
has been denied by the Board. To prevent-a union
found ineligible for certification from engaging in
representative status unavailable through the Board's
usual representation case processes, and to prevent the
prospect of a series of election petitions followed by
recognitional picketing, the Board would be under
pressure to disregard the literal language of Section
8(b)(7)(C) by making any recognitional picketing by an
ineligible union a violation of that section.4*
Also, under the majority Bekins holding, a labor
Organization could be denied certification upon the
mere presumption that it will fail to discharge its
responsibility to represent employees in this unit fairly
solely because it has failed to represent employees
fairly in some other bargaining unit, rather than on
proof of such dereliction as to unit employees in a
revocation proceeding. In fact, the Employer herein, in
seeking to prevent the issuance of certification, relies
upon discriminatory provisions in the Union's contracts
“Bekins, 211 NLRB at 147. fn. 43, dissenting opinion.
22a
in‘ other bargaining units with other employers,
contracts to which this Employer has never been a
party and which were found to be unlawful solely
because they perpetuated the other employers’ past
discrimination. For the Board to conclude that there
will be further unlawful conduct solely on the basis of
such evidence is directly contrary to our longstanding
policy. Traditionally, as is true of virtually all court
and administrative determinations, the Board’s findings
and remedies apply only to the: particular parties before
us.
The Bekins holding further would lead to anomalous
situations such as that where an employer exercises
exclusive control over hiring, resulting in the total
absence of female and black employees in the unit, yet
it is argued that this situation constitutes evidence of
the union’s propensity to practice discrimination and
certification of the union would perpetuate this
condition. In these circumstances it would be iudicrous
to excuse the employer from its bargaining obligation.
In the instant case, the Employer concedes that, in a
bargaining unit comprised of 211 employees, 58 are
black and 114 are Spanish-surnamed Americans.
Inasmuch as the Union won the decertification election
by a vote of 108 to 66, simple arithmetic establishes
that a substantial percentage of the minority employees
voted in favor of continued representation by the
Union. This Union has represented these employees
and, presumably, these employees would not have
selected it again as their collective-bargaining agent
had the Union previously discriminated against them or
had they considered it likely that the Union would do
so in the future.
Thus, the argument raised by the Employer here
runs counter to our basic policy discussed above of
23a
looking only at the conduct of the parties to our
proceeding vis-a-vis each other.4? Indeed, it appears
that the Employer’s purpose is to delay the onset of
bargaining rather than to protect the minority or
female employees from actual discrimination by the
bargaining representative.
Questions concerning representation must be ex-
peditiously resolved in order to achieve the statutory
objective of fostering collective bargaining and assuring
Stability in labor-management relations. To that end,
Congress chose to deny the parties judicial review of
representation proceedings and to exempt such
proceedings from the strictures of the Administrative
Procedure Act.5° For the same reason, representation
questions are decided in nonadversary, factfinding
proceedings. The overriding importance of allowing
employees to decide as expeditiously as _ possible
whether or not they desire a bargaining representative
justifies elimination of these procedural safeguards in
representation cases.
This is not to say that the Board will never consider
such issues in representation proceedings. Rather, we
have and will continue to consider the impact of
unlawful discrimination where such consideration is
required to preserve the integrity of the Board’s own
processes. Thus, the Board has long held that it would
not apply its contract-bar rules so as to. shield
Even in cases where the Board has held, prior to an election,
that a union was disqualified from representing employees, such
finding has been predicated on the labor organization's conflict of
interest with employees in the specific unit sought. Harlem River
Consumers Cooperative, Inc., 191 NLRB 314 (1971); Bambury
Fashions, Inc., 179 NLRB 447 (1969).
0American Federation of Labor, et al. v. ‘N.L.R.B., 308 U.S.
401, 409-411 (1940).
24a
me ee SPAN. LAME tS.
collective bargaining agreements which patently dis-
criminate between black and white employees from the
challenge of otherwise appropriate election petitions.>!
In reaching this conclusion, the Board specifically
recognized that to hold otherwise would be inconsistent
with the Supreme Court’s condemnation of governmen-
tal sanctioning of racially separate grouping.*? Similar-
ly, in order to insure fairness in Board-conducted
elections, the Board has held that an employer's
preelection propaganda which constituted “a deliberate,
sustained appeal to racial prejudice . . . created
conditions which made impossible a reasoned choice of
a bargaining representative.” °? The decision emphasiz-
ed that “[t]he Board does not intend to tolerate as
‘electoral proganda’ appeals or arguments which can
5! Pioneer Bus Company, Inc., 140 NLRB 54 (1962).
S2Brown, et al. v. Board of Education ef Topeka, et al., 349
U.S. 294 (1954); Burton v. Wilmington Parking Authority, et al.,
365 U.S. 715 (1961). We emphasize that Pioneer Bus, supra, is
not statutorily mandated. Our contract-bar rules are wholly
discretionary and, consequently, we need not recognize an existing
collective bargaining agreement as a bar to an election where to
do so would not contribute to the stability of labor relations but
would have the reverse effect. See The Pulitzer Publishing
Company (Owner and Operator of Stations KSD and KSD-TV),
203 NLRB 639 (1973).
3Sewell Manufacturing Company, 138 NLRB 66, 70 (1962).
25a
have no purpose except to inflame the racial feelings
of voters in the election.”
It is thus apparent that the Board has considered,
and will continue to consider, in representation
proceedings the possible impact of clearly existing
invidious discrimination within the unit at issue or of
appeals to prejudice directed at employees in such unit
in cases where an inquiry into these matters is
necessary to protect the fairness of the election
process.°° However, because of the essentially non-
adversary nature of representation proceedings, we
believe that allegations of invidious discrimination
should be considered in such proceedings only when
required to fulfill our primary obligation of protecting
employees from interference in exercising their right
to select a bargaining representative.
It is thus apparent that issues involving alleged
invidious discrimination by a labor organization should
be considered in an adversary proceeding in which
the accused union is accorded the full spectrum
4138 NLRB at 71. See also Glazers Wholesale Drug Company,
Inc., 209 NLRB 1152 (1974), in which a majority of a Board
panel concluded that an employer's comment that if the union
was voted in “the blacks would take over” could be grounds for
setting an election aside, although it was not a threat of employer
action constituting a violation of Sec. 8(a)(1) of the Act. Also cf.
NLRB vy. Staub Cleaners, Inc., 357 F. 2d 1 (C.A. 2, 1966)
remanding 148 NLRB 278 (1964), Supplemental Decision and
Order 171 NLRB 332 (1968), enfd 418 F. 2d 1086 (C.A. 2, 1969).
‘SIn these cases, however, the Board was not required to resolve
factual disputes. Rather, each instance involved evaluation of
uncontroverted facts as to possible impact on the election process.
|
26a
of due process, including particularly the right of
judicial review.*
This view accords with the basic premise of the Act
that a determination that a party has engaged in
unlawful: conduct under Section 8 may only be made
in an adversary proceeding initiated by a charge and
followed by an investigation, issuance of a formal
complaint, and litigation in a hearing before a duly
qualified Administrative Law Judge. Such proceedings
are at all stages subject to the Administrative
Procedure Act and to review by Federal courts of
appeals.5’? These procedures also accord with the basic
soWe agree with our concurring colleague that all fair
representation claims must be adjudicated under Sec. 8&(b) of the
Act and not as a defense to an 8(a)(5) proceeding or in a
representation proceeding.
S7Our dissenting colleague disputes our view that under the
Bekins approach a union which has been refused certification has
very little opportunity to obtain judicial review of such action. He
cites Miami Newspaper Printing Pressmen’s Union Local 46 v.
McCulloch, 322 F. 2d 993 (C.A. D.C., 1963), for the proposition
that such review is available for cases in which “the Board acts
‘in excess of its delegated powers and contrary to a specific
prohibition in the Act,” and when such action causes the
‘depri[vation] . . . of a “right” assured ... by Congress.’ ” 322 F.
2d at 994. Assuming that such review is available whenever
application of the Bekins doctrine requires the withholding of a
certification, it would be available only if, as we believe, that
doctrine caused the Board to act “in excess of its delegated
powers and contrary to a specific prohibition in the Act.” Such
review would not be available as to the factual finding that the
union engaged in the disqualifying discrimination. Quite naturally,
given our disagreement with our colleague as to the merits of the
Bekins doctrine, we do not see how the availability of such
limited review can be counted as an argument in favor of Bekins.
Rather, we believe his observation and the case he cited in
support helps to show the essential correctness of our views in the
matter.
27a
procedures required under Title VII, ie., filing of a
charge followed by investigation and, where required, a
full court hearing on the merits.
Indeed, as Professor Meltzer observed with respect
to the Bekins doctrine:
In addition, the dissenters’ approach would
avoid the suspension of important rights on the
basis of allegations, and thereby would serve the
values of the NLRA, Title VII and our legal
system generally. Indeed, it is one of the several
ironies of Bekins that the Board will suspend an
important right on the basis of allegations of Title
VII violations, while a party charged under that
title suffers no legal disability until there is a
judicial finding upholding the charge.’
We conclude that our statutory function of
eliminating invidious discrimination by _ labor
Organizations is best served by scrutinizing their
activities when they are subject to our adversary
procedures and remedial orders. Indeed, the Board has
long utilized unfair labor practice procedures to
consider allegations of invidious discrimination by
labor organizations and employers which interfere with
Section 7 rights. We have done so with respect to
unions by policing their conduct vis-a-vis the
employees in units they represent through our power
to remedy -a labor organization’s breach of its duty of
fair representation. This doctrine was first enunciated
by the Board in Miranda Fuel Company, _Inc.:%9
See Meltzer, supra at p. 24.
%140 NLRB 181 (1962).
28a
Section 7 thus gives employees the right to be free
from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affect-
ing their employment. This right of employees is a
statutory limitation on_ statutory bargaining
representatives, and we conclude that Section
8(b\(1)(A) of the Act accordingly prohibits labor
organizations, when acting in a statutory represen-
tative capacity, from taking action against any
employee upon considerations or classifications
which are irrelevant, invidious, or unfair. [Foot-
note omitted. ]°°
This doctrine of the duty of fair representation was
derived from the Supreme Court’s decision in three
companion cases: Steele v. Louisville & Nashville
Railroad Co.; *' Tunstall v. Brotherhood of Locomotive
Firemen & Enginemen;* and Wallace Corporation v.
N.L.R.B.3 In Steele and Tunstall, both of which
involved racial discrimination by a union which was
statutory representative under the Railway Labor Act,
the Court concluded that such a representative “cannot
rightly refuse to perform the duty, which is inseparable
from the power of representation conferred upon it, to
represent the entire membership of the craft." In
140 NLRB at 185.
61323, U.S. 192 (1944).
62323 U.S. 210 (1944).
63323 U.S. 248 (1944).
64323 U.S. at 204. Our dissenting colleague states that “[iJn
Steele vy. Louisville & Nashville Railroad Co. . . . the Supreme
Court made clear that the Constitution prohibited a_ labor
organization, which was granted a statutory right to bargain
exclusively for employees, from engaging in invidious discrimina-
tion in their representation.” What the Supreme Court held in
that case was that the Railway Labor Act imposed such a duty
upon the statutory representative (at 202). Of course Justice
Murphy, in his concurrence, expressed the view that such a duty
was constitutionally mandated (at 209).
29a
Wallace, which did not involve race discrimination, the
Court held that the same duty of fair representation
was required of bargaining representatives selected
under the National Labor Relations Act.
The duty of fair representation has become the
touchstone of the Board’s concern with invidious
discrimination by unions. For example, it is well
established that a labor organization's rejection of an
employee’s grievance solely because of his or her race
breaches the duty of fair representation and violates
Section 8(b)(1)(A), 8(b)(2), and 8(b)(3) of the Act.
Similarly, we have held that a union’s refusal to
process grievances filed to protest an employer's
segregated plant facilities constitutes a violation of
Section 8(b)(1)(A).5
In Galveston Maritime Association, Inc.,°’ the Board
held, again relying on the duty of fair representation,
that a union’s maintenance of a collective-bargaining
agreement which allocated work on the basis of race
violated Section 8(b)(1)(A), 8(b)(2), and 8(b)(3) of the
Act. The Board premised the 8(b)(2) violation on its
conclusion that the establishment, maintenance, and
‘Independent Metal Workers Union, Local No. | (Hughes Tool
Company), 147 NLRB 1573 (1964).
Local Union No. 12, United Rubber, Cork, Linoleum &
Plastic Workers of America AFL-C1O (The Business League of
Gadsden), 150 NLRB 312 (1964), enf'd 368 F. 2d 12 (CA 5, 1966).
The Board specifically noted that the union's refusal to process
the grievances was based on its belief that discriminatory job
conditions should continue and therefore held that the refusal to
process a grievance on that ground violated the duty of fair
representation.
6’Local 1397, International Longshoremen’s Association, AFL-
ClO, et al. (Galveston Maritime Association, Inc.), 148 NLRB
897 (1964), Member Fanning concurring.
30a
enforcement of discriminatory work quotas based on
irrelevant, invidious, and unfair considerations of race
and union membership discriminated against employees
in violation of Section 8(a)(3) of the Act and that, by
causing an employer to so discriminate, a union
violates Section 8(b)(2). In holding that the work
allocation violated Section 8(b)(3), the Board concluded
that “a labor organization’s duty to bargain collectively
includes the duty to represent fairly,” on grounds that
collective-bargaining agreements which discriminate
invidiously are not lawful under the Act and therefore
do not meet the good-faith requirements of Section
8(d).
The duty of fair representation is not limited to
present discrimination, but is also breached by union
policies which perpetuate past discrimination. Thus, in
Houston Maritime Association,” the union had a policy
prior to September 1963 of refusing to accept black
applicants for membership. In the latter part of that
month, the union adopted a policy of closing its
register of applicants and refusing to accept any further
ipplications regardless of the applicant’s race. In
addition to finding that the union’s new policy violated
Section 8(b)(I)A) and Section 8&(b)(2) of the Act as
an attempt to perpetuate past discrimination, the
Board found that the employers who had participated
in the pattern of unlawful conduct had_ thereby
violated Section &(a)(l) and (3).
*148 NLRB at 899.
Houston Maritime Association, Inc. and Its Member Com-
panies, 168 NLRB 615 (1967).
3la
While these cases clearly illustrate that we provide a
remedy for breach of the duty of fair representation,
thereby protecting employees from invidious discrimina-
tion by their bargaining representative, other remedies
for a union’s unlawful discrimination are also available.
For example, we have held that a union commits
unfair labor practices by attempting to force an
employer to continue discriminatory practices even
though no breach of the duty of fair representation is
involved.” Additionally, the Board has, in appropriate
cases, revoked the certification of unions which engage
in unlawful invidious discrimination.7!
As the foregoing discussion indicates, the Board has
long recognized its obligation to consider issues
concerning discrimination on the basis of race, sex,
national origin, or other unlawful, invidious, or
irrelevant reasons when they are raised in an
appropriate context, and we shall continue to do so.”
Local Union No. 2, of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO (Astrove Plumbing and
Heating Corp.), 152 NLRB 1093 (1965), wherein the Board held
that a union violated Sec. 8(b\2) and 8(b\1)A) of the Act by
engaging in a walkout in order to protest an employer's attempt
to remedy its past discrimination.
"Independent Metal Workers Union, Local No. | (Hughes Tool
Company), supra.
’?>Member Fanning notes the dissent’s observation in fn. 76 that
“Member Fanning has not yet accepted Miranda.” This is
superficially correct. He does not, for the reasons explained in
General Truck Drivers, Chauffeurs and Helpers Union Local No.
692, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Great Western Unifreight
System), 209 NLRB 446 (1974). But, as he carefully explained in
his concurring opinion in that decison, that does not mean that
he-—any more than the Board majority—sanctions or condones
union misconduct towards employees. He has found violations of
32a
However, on the basis of all the foregoing, although
we neither approve nor condone discriminatory
practices on the part of unions, we hereby overrule
Bekins as we conclude that the holding of that case is
neither mandated by the Constitution nor by the Act
and is destructive of the policies embodied in Section
9c) of the Act. We further conclude that issues such
as those raised by the Employer herein are best
considered in the context of appropriate unfair labor
practice proceedings. We do so on the basis of the
paramount importance of avoidance of delay in
representation cases, the procedural safeguards afforded
in unfair labor practice proceedings which are not
available in representation proceedings, the somewhat
different purposes served by Section 8 and Section 9
of the Act, and the fact that effective procedures
already exist for litigation of the type of discrimination
alleged by the Employer herein.
We therefore overrule the Employer's objection and
shall certify the Union as the representative of the
employees in the unit found appropriate above.
Sec. 8(b\ IMA) in the maintenance of segregated locals, Local
No. 106, Glass Bottle Blowers Association, AFL-C1O (Owens-
Illinois, Inc.,) 210 NLRB 943 (1974), enfd. 520 F. 2d 693 (CA 6,
1975); and of Sec. 8(b)IMA) and 8&(b)(2) in a union's coercive
advocation and enforcement of racially discriminatory hiring
policies, /nternational Brotherhood of Painters and Allied Trades,
Local Union 1066, AFL-CIO (W. J. Siebenoller, Jr., Paint
Company), 205 NLRB 651 (1973). He has, moreover, found
breaches of the duty of fair representation be be violations of Sec.
8(b\ IMA), Truck Drivers, Oil Drivers and Filling Station and
Platform Workers Local No. 705, International Brotherhood of
Teamsters, Chauffeurs, Warehouser:en and Helpers of America
(Associated Transport, Inc.), 209 NLRB 292 (1974); Local 485,
International Union of Electrical, Radio & Machine Workers,
AFL-CIO (Automotive Plating Corp.), 170 NLRB 1234 (1968).
33a
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, General Drivers & Helpers Local Union No.
657, and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended, the said labor
organization is the exclusive representative of all the
employees in the following appropriate unit found
appropriate herein for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment:
All warehouse employees, dock workers, truck
drivers, sanitation drivers and helpers, shipping
and receiving clerks, warehouse clérical employees,
garage mechanics, fork lift and pallet jack
maintenance employees and custodial employees
employed at the Employer’s grocery warehouse,
produce warehouse, Harry Tappan _ Institutional
Warehouse and meat products warehouse located
in Bexar County, Texas, excluding all other
employees including all maintenance and construc-
tion shop employees, poultry processing plant
employees, bakery employees, office clerical
employees, guards, watchmen and supervisors as
defined in the Act.
MEMBER WALTHER, concurring:
I agree with my colleagues in the majority that the
Employer’s objection should be overruled. | agree also
with their rationale for doing so to the extent that it is
consistent with the views expressed below.
With respect to allegations pertaining to a union's
breach of its duty of fair representation, not only do |
34a
agree with my colleagues that such claims “should be”
considered in an adversary proceeding, | think that
they must be considered in such a_ proceeding.
Assuming, as | do, that a proper accommodation
between this Board and other governmental agen-
cies (e.g., EEOC) requires us to confine our ex-
amination to actual discrimination in the particular
unit under consideration, fair representation claims are
premature in both representation and 8(a)(5)
certification-test proceedings—for in neither situation
has the union yet been afforded an opportunity to
represent the unit employees a: all, fairly or unfairly.
Such claims would, of necessity, have to relate to
potential breaches of the duty of fair representation
based upon conduct at other locations, an area of
inquiry I would not entertain in any Board proceeding.
For this reason, and for all of the due _ process
safeguards attendant to our unfair labor practice
proceedings mentioned by my colleagues, I conclude
that all fair representation claims must be adjudicated
under Section 8(b) of the Act.
My colleagues in the majority note that “we have
and will continue to consider [in a_ representation
proceeding] the impact of unlawful discrimination
where such consideration is required to preserve the
integrity of the Board’s own processes.” To the
instances which they cite, | 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, |
would disqualify the petitioner from access to our
35a
election machinery until it can establish that the
offensive practices have been eliminated.
The proviso to Section 8&(b)(I)A), of course,
prohibits litigation of membership discrimination claims
in an unfair labor practice proceeding. | do not think,
however, that the Board should ignore such blatant
discrimination. Irrespective of whether we are con-
stitutionally obligated to do so, I would, as a matter
of discretion, deny a union which discriminates in this
fashion access to our election machinery. In such
instances, the discriminatory conduct is open,
documented, and pervasive. The step which I recom-
mend it seems to me is, in the words of the majority,
“required to preserve the integrity of the Board’s own
processes.”?3
in the instant case, the Employer alleged discrimina-
tion both in the form of exclusionary membership
policies and unfair representation. The evidence which
was submitted, however, all related to matters falling
within the realm of fair representation. No evidence
was offered in support of the restrictive membership
claim. In these circumstances, I agree with my
colleagues that the Employer’s objection should be
overruled.
MEMBER JENKINS, dissenting:
On June 7, 1974, the Board in Bekins Moving &
Storage Co. of Florida, Inc., 211 NLRB — 138 (1974),
held that the due process clause of the fifth
amendment precludes its certification as the exclusive
?3Since the inquiry would determine the union’s qualification to
use election procedures, appropriate membership discrimination
claims would have to be entertained at the outset of the
representation procedure, prior to the direction of an election.
36a
representative of unit employees of a labor organiza-
tion which engages in invidious discrimination and that
a precertification inquiry as to a labor organization's
representation of employees on a_nondiscriminatory
basis is constitutionally required if the issue is timely
raised. Two members of the Board dissented from
this decision for the reason, among others, that any
constitutional obligation of fair representation could be
enforced after certification and that to delay certifica-
tion for an inquiry into the labor organization's
capacity for nondiscriminatory representation would
provide “a procedure by which employers opposed to
dealing with their employees collectively can delay and
forestall the establishment of the collective-bargaining
relationship.” 211 NLRB at 148.
Experience of more than 2-1/2 years with the Bekins
decision has provided no evidence of the delays which
the dissenting members envisaged and which con-
stituted a principal basis for their dissent. In the
intervening years, however, the membership of the
Board has changed and today a new majority holds
that the due process clause of the fifth amendment
does not preclude the Board from certifying as the
statutory bargaining agent created by the National
Labor Relations Act a union which engages in
discriminatory representation, that the statute requires
the certification of such a union if it is successful in
an election, and that for policy reasons, as well as the
statutory mandate, charges of discriminatory represen-
tation “are best considered in the context of ap-
propriate unfair labor practice proceedings.” According-
ly, it overrules the Bekins decision and forecloses any
precertification inquiry into a union’s discriminatory
representation in the bargaining unit in issue. The
Board majority in Bekins, of which | was a member,
found that such certification “would appear to be
37a
sanctioning, and indeed furthering, the continued
practice of such discrimination, thereby running afoul
of the due process clause of the fifth amendment.” 211
at 139. Nothing has occurred since that decision to
undermine the validity of this conclusion. | therefore
vigorously disagree with today’s contrary holding of
my _ colleagues.’4
In my colleagues’ view the language of Section
9(c)(1) requires the Board to certify a union even
though its governing instruments (constitution, charter,
bylaws, etc.) exclude from its membership black or
female employees in the unit or permit black or female
employees in the unit to become members only of a
segregated local.’?5 As a result of the Board’s certifica-
tion, the employer is required to bargain with the
Union as the exclusive representative of all employ-
ees in the unit, minority employees who voted
against the union can have no other representation, the
74In earlier decisions the Board has held, on constitutional
grounds, that discriminatory practices by a union required the
denial of representation privileges. /ndependent Metal Workers
Union, Local No. | (Huges Tool Company), 147 NLRB 1573
(1964); Pioneer Bus Company, Inc., 140 NLRB 54 (1962).
75] do not mean to suggest that the present case involves this
situation, but the effect of the majority’s decision is to require
certification of such a union by precluding any precertification
inquiry into: a union’s discriminatory practices. In the present
case, the objection to certification included the claim that the
union excluded “persons from membership on the basis of race,
alienage or national origin.” Local 657, which was the subject of
the Employer's certification objection in this case, has been found
accountable for discriminatory practices in establishing seniority
rosters in its collective-bargaining agreements with three other
employers engaged in similar business in this same area.
Rodriguez v. East Texas Motor Freight, ‘supra; Herrera v.
Yellow Freight Systems, Inc., supra; Resendis v. Lee Way Motor
Feight, Inc., supra.
38a
cent tin tates $ tne
Union’s status as exclusive bargaining representative
cannot be challenged for a year, and there is a
presumption that its status as exclusive bargaining
representative continues after a year. My colleagues
acknowledge “that certification of a labor organization
confers substantial benefits” but nevertheless assert that
these benefits which flow directly from the Board’s
certification do not support a discriminating union in
its invidious discrimination. They do not, and cannot,
explain how assistance to the union in the exclusive
representation of unit employees does not amount to
assistance in the union’s discrimination when that
representation is conducted in accordance with the
union’s discriminatory practices. It is no answer that at
some uncertain future date, after the union with Board
assistance has carried out its discriminatory practices,
unfair labor practice proceedings may be instituted
which whfbring these activities to a halt. The fact of
the matter is that until that day comes, if it ever does
come, the Board has fostered invidious discrimination
by the statutory agent.
The decision of the Supreme Court leave no room
for such Government-supported discrimination. In
Steele v. Louisville & Nashville Railroad Co., 323 U.S.
192 (1944), the Supreme Court made clear that the
Constitution prohibited a labor organization, which
was granted a statutory right to bargain exclusively for
employees, from engaging in invidious discrimination in
their representation. The decisions of the supreme
Court have repeatedly invalidated action taken by
Federal or state agencies which have the effect of
furthering, supporting, or assisting discrimination in
any form. See, e.g., Bolling v. Sharpe, 347 U.S. 498
(1954); Shelley v. Kraemer, 334 U.S. 1 (1948); Burton
v. Wilmington Parking Authority, 365 U.S. 715 (1961).
39a
Since the Board’s certification grants a discriminating
union the right of exclusive representation, together
with various concomitant advantages, it seems that my
colleagues close their eyes to the facts when they assert
that certification does not assist a discriminating union
in its discriminatory practices. As the Court stated in
N.L.R.B. v. Mansion House Center Management
Corporation, 473 F. 2d 471, 477 (CA 8, 1973),
“Federal complicity through recognition of a dis-
criminating 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.”
In an attempt to rationalize their conclusion that the
due process clause of the fifth amendment does not
prohibit the Board’s certification of a discriminating
union, my colleagues assert that the view of the
majority in Bekins that certification of a discriminating
union violates constitutional restrictions misconstrued
the Supreme Court delineation of the scope of
prohibited state action. After reviewing a number of
cases in which the Supreme Court held state action
involved with invidious discrimination exceeded con-
stitutional bounds, my colleagues state that such an
involvement is found in circumstances, among others,
where the Government authorized private discrimina-
tion or fostered and encouraged private discrimination.
They conclude, however, that certification of a discri-
minating union does not sufficiently involve the
Board, in the union’s invidiously discriminatory prac-
tices to render its action unconstitutional because “a
certification is neither more nor less than an
acknowledgment that a majority of the employees in
40a
an appropriate bargaining unit have selected the union
as their exclusive bargaining representative” and does
not authorize the union to engage in discrimination.
This evaluation of the Board’s involvement in the
union’s discriminatory practices is a patent understate-
ment of the significant effects of certification. By
certification the union becomes the statutory bargaining
agent with statutory rights. Improper interference with
the selection of the oargaining representative is the
violation of “public, not private, rights.” Virginia
Electric & Power Co. v. N.L.R.B., 319 U.S. 533, 543
(1943). The usual form of certification of representative
provides that the “labor organization is the exclusive
representative of all the employees in the .. .
appropriate unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.” The
invidious discrimination of a discriminating union is
practiced in the very areas to which the certification of
a union relates. As previously noted, certification of
a union confers the exclusive right to represent all
employees in the bargaining unit, the right to be free
from challenge for a year, and a presumption that its
majority status continues after a year. Without the
Board’s certification a labor organization does not
enjoy the rights of a _ statutory bargaining agent.
Obviously, a union’s status as the statutory bargaining
agent enhances its position with respect to both the
employer and the unit employees. By certifying a union
which excludes blacks or women from membership or
segregates them in a separate local, the Board directs
the employer to bargain exclusively with this dis-
criminating union as representative of the excluded or
segregated blacks or women. Minorities do not have a
protected right, separate from the certified represen-
tative, to engage in concerted activities to protest
4la
discrimination by their employer. Emporium Capwell
Co. v. Western Addition Community Organization, 420
U.S. 50 (1975). Certification is thus an integral part of
the representation function in which the union
practices discrimination and is patently direct participa-
tion and assistance by a Government agency, contrary
to constitutional strictures, in the union’s dis-
criminatory representation. Accordingly, “[w]here a
governmental agency recognizes such a union to be the
bargaining representative it significantly becomes a
willing participant in the union’s_ discriminatory
practices.” Mansion House, supra, 473 F. 2d at 473.
The Board’s conferring the status of statutory bargain-
ing agent upon a union which engages in invidious
discrimination clearly fosters and supports the union’s
discriminatory practices and this constitutes the Board’s
involvement in them under the standards which my
colleagues acknowledge but contend are not applicable
here. As the Supreme Court stated in Burton v.
Wilmington Parking Authority, supra, where the state
authority merely leased space in a public building to a
private restaurant which denied service to blacks, there
existed “that degree of state participation and involve-
ment in discriminatory action which it was the design
of the Fourteenth Amendment to condemn.”
The Board’s decisions holding breach of the duty of
fair representation to be an unfair labor practice, with
which | of course fully agree, are no substitute for the
disqualification of a discriminating union in a represen-
tation proceeding. The fifth amendment does not permit
a Government agency to provide the instrument for
practicing discrimination merely because at some
uncertain future date the Board may have an
Opportunity to terminate this discrimination in unfair
labor practice proceedings set in motion by the charges
42a
Pe re ee ee
a Oe ee OT ee nee
of private parties if the General Counsel decides to file
a complaint. The Board cannot initiate unfair labor
practice proceedings. Moreover, for a_ variety of
reasons, such proceedings may never be_ instituted
notwithstanding the discriminatory exclusion of
minorities from the union or from employment in the
certified unit.
The effect of a union’s exclusion of blacks or
women from membership or their segregation in
separate locals may discourage them from seeking or
retaining employment with an employer who _ is
compelled by the Board’s certification to bargain
exclusively with the discriminating union. An employer
confronted with a certification may find it expedient to
enter into a collective-bargaining agreement wiith a
union which excludes blacks or women trom employ-
ment. In these situations, the possibility of invidious
discrimination being raised as an unfair labor practice
is minimized or eliminated. The certification of the
Board thus serves as an instrument for the perpetua-
tion of invidious discriminatory practices. It is clear to
me, therefore, that the due process clause of the fifth
amendment requires that certification be denied
whenever the evidence establishes that the labor
organization’s representation in the unit for which it
requests certification will be infected with invidious
discrimination.
My colleagues contend that certification of a union
successful in an election is mandatory under the Act
and that an administrative agency cannot pass upon
the constitutionality of a statute whose obligation it is
the agency’s to administer. This argument is completely
43a
devoid of mert.’7° Certainly an agency is not holding a
statute unconstitutional when it decides to administer it
in a constitutional manner. Direct commands in a
statute are impliedly made subject to constitutional
limitations. My colleagues would meet the problem of
eliminating invidious discrimination by labor
organizations through its power in unfair labor practice
proceedings to remedy the union’s breach of its duty
of fair representation. But the National Labor
Relations Act nowhere expressly imposes on_ the
statutory bargaining agent a duty of fair representa-
tion. This doctrine, first enunciated by the Board in
Miranda Fuel Company, Inc., 140 NLRB 181 (1962),
as my colleagues acknowldge,’’? was derived from the
Supreme Court’s decision in Steele v. Louisville &
Nashville Railroad Co., 323 U.S. 192 (1944); Tunstall
v. Brotherhood of Locomotive Firemen & Enginemen,
323 U.S. 210 (1944); and Wallace Corporation v.
N.L.R.B., 323 U.S. 248 (1944). In these cases the
Supreme Court held that a statutory duty of fair
representation by the exclusive bargaining represen-
tative must be implied for constitutional reasons. Thus,
in attacking the problem of invidious discrimination by
reading into the statute a duty of fair representation,
In Steele v. Louisville & Nashville Railroad Co., 323 U.S. at
198, the Supreme Court held that if a statute confers on a
statutory .bargaining representative the right to discrimfnate
against members of the bargaining unit
. constitutional questions arise. For the representative is
clothed with power not unlike that of a legislature which is
subject to constitutional limitations on its power to deny,
restrict, destroy or discriminate against the rights of those for
whom it legislates and which is also under an affirmative
constitutional duty equally to protect those rights.
77Member Fanning has not yet accepted Miranda.
44a
ihe ted te ate aE
my colleagues rely no less on _ constitutional re-
quirements than they would if they held nondiscrimina-
tion to be a condition to certification. Similarly, in
Pioneer Bus Company, Inc., 140 NLRB 54 (1962), the
Board took account of constitutional requirements in
denying the benefits of its contract-bar doctrine to a
discriminating union. And in IJndependent Metal
Workers Union, Local No. | (Hughes Tool Company),
147 NLRB 1573 (1964), the Board relied on con-
stitutional doctrine for its holding that racial segrega-
tion in membership by a statutory bargaining represen-
tative cannot be countenanced by a Federal agency.
Miranda, Pioneer Bus, and Hughes Tool are relied on
approvingly by my colleagues. It is clear that the Board
is required to interpret and apply the Act in a manner
which will avoid offense to the Constitution and that
in doing so it is not adjudicating the constitutionality
of congressional enactments.
My colleagues’ decision does further violence to
constitutional doctrine in its suggestion that a dis-
criminating union which wins an election should be
certified because it may be preferred by minority
employees as better than no union at all. The majority
does not indicate how the minority employees’
preference in this respect would be ascertained.
Moreover, as to a _ discriminating union’s — being
preferable to none at all, it might just as readily be
claimed that segregated school systems should have
been upheld because they were better than none at all
and a state might refuse to support a desegregated
system. The effect of my colleagues’ position is that
the Board can properly assist in the perpetuation of
discriminatory representation because such representa-
tion might be preferred to no representation. No
authority is cited for this bizarre suggestion and | am
certain none can be _ found.
45a
The constitutional impediment to certification of a
discriminating union forecloses consideration of policy
reasons for adopting a _ procedure which grants
certification and postpones determination of disqualify-
ing discrimination to a later date. But even if there
were no such impediment, I find to be singularly
lacking in substance the reasons advanced by my
colleagues for postponing until after certification the
determination of invidious discrimination questions.
The principal concerns of my colleagues appear to be
that employers will seize upon the opportunity to raise
questions of discrimination as a device for delaying
certification and collective bargaining, that they will
present evidence of discrimination of a character that
does not establish that the particular local involved
will engage in discrimination in the unit for which
certification is sought, and that in the certification
stage there is no opportunity for an adversary hearing
which will permit the question of discrimination to be
determined properly.
In attempted support of their argument that
employers will use objections to certification based on
discrimination as a tool for delaying or avoiding
collective bargaining, my colleagues cite as illustrations
cases in which the evidence of a labor organization's
discriminatory conduct fell far short of establishing
that it would engage in discrimination in the unit for
which certification was currently being sought. If there
is a propensity for employers to submit inadequate
evidence of discrimination in support of an objection
to certification, this is hardly relevant to the question
whether certification should be denied when conclusive
evidence of such discrimination is presented. | agree
with my colleagues that disqualifying evidence of
discrimination must relate to the union’s future course
46a
Saibaba aint nls oe EERE - -
of conduct in the unit involved in the representation
proceeding and must do more than provide a basis for
speculation as to the union’s conduct as the certified
bargaining representative. My colleagues apparently
assume that it is impossible to prove disqualifying
discrimination before certification. But certainly where
a union’s governing instruments require it to exclude
minorities from membership or segregate them in
separate locals in the unit for which certification is
sought, there is irrebuttable evidence of invidious
discrimination. What lesser evidence will satisfy the
Board is a matter for case-by-case determination. To
hold, as my colleagues do, that because some evidence
will be insufficient no evidence will be permitted, is a
perversion of the administrative process. Nor can it be
persuasively maintained that the mere opportunity to
present inadequate evidence of discrimination will
unduly delay the bargaining process. The more than 2-
1/2 years’ experience with the Bekins decision has
shown that our Regional Offices.and the Board itself
have been able to deal expeditiously with spurious
objections to certification based on alleged discrimina-
tion, and that no undue delays have occurred. See,
e.g., Grants Furniture Plaza, Inc. of West Palm Beach,
Fla., 213 NLRB 410 (1974).7
In Grants, the Board adopted the Regional Director's
recommendation that the employer's objection to certification on
the ground that the union was guilty of discriminatory practices
be overruled without a hearing. The Board held that statistical
evidence of the composition of the union’s membership without
evidence of who controlled hiring practices and evidence that a
complaint had been filed by the Department of Justice alleging
discrimination were not sufficient to warrant a hearing and
certified the union.
47a
My colleagues further claim that determination of
an invidious discrimination objection should be made
in an adversary proceeding which is not available
during the representation stage of a case. This is
clearly in error. If a genuine issue of discrimination is
presented as an objection to certification after an
election, the procedure contemplated by Bekins would
be to designate a Hearing Officer to conduct a hearing
on the question of discrimination and any other
objections to the election which involved genuine issues
of fact. At this hearing all interested parties would
have an opportunity to present evidence, cross-
examine witnesses, submit briefs, and, if desired, to
participate in oral argument. After the Hearing Officer
files his report and recommendations, the parties may
file exceptions and briefs with the ‘Board after
consideration of which the Board will render its
decision. If certification is granted, the employer may
obtain judicial review in a court of appeals after the
summary judgment finding of an 8(a)(5) violation
based upon its refusal to bargain. May Department
Stores Co. d/b/a Famous-Barr Co. v. N.L.R.B., 326
U.S. 376 (1945). If certification is denied, a union may
obtain judicial review by means of an independent
action in a United States District Court. Miami
Newspaper Printing Pressman’s Union Local 46 v.
McCulloch, 322 F. 2d 993 (C.A.D.C., 1963). These
opportunities for hearing and review are obviously
adversary in character (see Miami Newspaper case,
supra at 998) and meet all the requirements of due
process.
To conclude, the Bekins decision properly holds that
certification of a discriminating union supports and
involves a Government agency in the discrimination in
48a
ed
a ls Dare
em = ee tg tS NOE MEM os ENE ewe ee OTS
violation of the due process clause of the fifth
amendment. Policy arguments are, accordingly, irrele-
vant but, in any event, those advanced by my
colleagues are entirely speculative and not supported
by experience under the Act. I therefore consider the
overruling of Bekins to constitute clear legal error.
49a
U, 5S, GOVERNMENT PRINTING OFFICE : 1979 O - 294+473
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.