Jubilee Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 8, 1973

202 N.L.R.B. 272 (N.L.R.B. 1973)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jubilee Manufacturing Company and United Steel-
workers of America, AFL-CIO. Case 17-CA-4404
March 8, 1973
DECISION AND ORDER
On September 9, 1971, Administrative Law Judge
Lloyd S. Greenidge (the title of "Trial Examiner"
was changed to "Administrative Law Judge" effec-
tive August 19, 1972) issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs and the Respondent filed a supporting brief. In
addition, the Board, by its Acting Executive Secre-
tary, invited the United States Equal Employment
Opportunity Commission, herein called EEOC, to
file a brief amicus curiae. Subsequently, the EEOC
filed a brief.
On April 12, 1972, the National Labor Relations
Board, having determined that the instant case raised
issues of substantial importance in the administra-
tion of the National Labor Relations Act, as
amended, notified the parties that oral argument on
the case would be heard by the Board on May 1,
1972. All parties and a representative of the EEOC
participated in the oral argument, which was there-
after held on the aforesaid date.
The Board has considered the record and the
attached Decision in light of the exceptions, briefs,
and oral argument and has decided to affirm the
Administrative Law Judge's rulings, findings,' and
conclusions as modified herein, and to adopt his
recommended Order.
The complaint alleged that Respondent violated
Section 8(a)(1) and (3) of the Act by discriminating
in granting wage increases and paying wage rates to
male employees based solely on the consideration of
sex. In addition, the complaint alleged that Respon-
dent violated Section 8(a)(5) of the Act by insisting
to the point of impasse during collective-bargaining
negotiations on a contractual provision on which it
was relying as the basis for unilaterally granting wage
increases and paying wage rates to its employees on a
sexually discriminatory basis.
The Administrative Law Judge concluded that the
record does not establish that Respondent has
developed and practiced a policy of discrimination
based on sex. He therefore found it unnecessary to
decide whether an employer's policy and practice of
invidious discrimination against its employees on the
basis of race, color, religion, sex, or national origin
interferes with or restrains the discriminated employ-
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule such resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
ees in exercising their Section 7 rights in violation of
Section 8(a)(1) and (3) of the Act. In regard to the
8(a)(5) allegation, as he found that Respondent did
not discriminate on the basis of sex by the aforesaid
practices, he concluded that the matter of minimum
rates was not an illegal subject and was instead a
mandatory topic which could be bargained on to
impasse. He further concluded that an impasse was
reached but that the Union, not Respondent, created
the impasse. In view of the foregoing, the Adminis-
trative Law Judge recommended that the 8(a)(1), (3),
and (5) allegations relating to alleged sex discrimina-
tion be dismissed in their entirety.
We agree that these allegations of the complaint
should be dismissed but solely for the reasons set
forth herein.
I. ALLEGED SEX DISCRIMINATION
While we have serious doubts about the validity of
the Administrative Law Judge's finding of nondiscri-
mination, we find it unnecessary to resolve this
question, for, in our view, discrimination based on
race, color, religion, sex, or national origin, standing
alone, which is all that is alleged herein, is not
"inherently destructive" of employees' Section 7
rights and therefore is not violative of Section 8(a)(1)
and (3) of the Act. There must be actual evidence, as
opposed to speculation, of a nexus between the
alleged discriminatory conduct and the interference
with, or restraint of, employees in the exercise of
those rights protected by the Act.
In United Packinghouse, Food and Allied Workers
International Union, AFL-CIO [Farmers' Coopera-
tive Compress] v. N. L. R. B.. 416 F.2d 1126, cert.
denied 396 U.S. 903, a panel of the United States
Circuit Court for the District of Columbia held that
an employer's discrimination against its employees
on account of race or national origin is a violation of
Section 8(a)(1) of the Act because such discrimina-
tion (1) sets up an unjustified clash of interests
between groups of workers, thus frustrating the
possibility of concerted action; and (2) creates in its
victims an apathy or docility which inhibits them
from asserting their rights' against the employer-
perpetrator of the discrimination. With all due
respect to the court, we are unable to agree with this
legal conclusion.
Although employer discrimination may have the
effect of setting group against group, that result is by
no means inevitable. A continued practice of
discrimination may in fact cause minority groups to
coalesce, and it is possible that this could lead to
resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and
find no basis for reversing his findings.
202 NLRB No. 2
JUBILEE MANUFACTURING COMPANY
collective action with nonminority group union
members.2 Furthermore, docility is only one of
several possible consequences of an employer's
discrimination. In light of the increased militancy of
minority groups today, it seems apparent that
minority groups in different areas of the country, in
different situations and at different times, react
dissimilarly to discriminatory practices.
Nor do we find merit in the contention that a
policy and practice of invidious discrimination in the
face of a union's ineffective efforts to eliminate such
discrimination has the "foreseeable consequence" of
discouraging union membership within the meaning
of Section 8(a)(3) of the Act, and discouraging the
exercise of Section 7 rights within the meaning of
Section 8(a)(1) of the Act. Ineffective efforts in other
areas, as for example when a union seeks unsuccess-
fully to gain a wage increase, may well result in the
union's losing face with the employees it represents.
Yet, to say that an employer's refusal to give a wage
increase violates Section 8(a)(3) or (1) because of this
loss of face seems to us beyond the reasonable intent
of the Statute.
This is not to say categorically that discrimination
on the basis of race, color, religion, sex, or national
origin is necessarily or always beyond the reach of
the statute. Such discrimination can be violative of
Section 8(a)(1), (3), and (5) in certain contexts, and
we have so held. However, in each of these areas in
which we have decided issues involving discrimina-
tion there has been the necessary direct relationship
between the alleged discrimination and our tradition-
al and primary functions of fostering collective
bargaining, protecting employees' rights to act
concertedly, and conducting elections in which the
employees have the opportunity to cast their ballots
for or against a union in an atmosphere conducive to
the sober and informed exercise of the franchise.
Thus, in the context of representation elections, we
have held that flagrant and irrelevant appeals to
racial prejudice which deliberately seek to overem-
phasize and exacerbate racial feelings will be grounds
for setting aside an election.3 In addition, we have
held that when employees band together to protest
their employer's discriminatory practices, whether
actual or supposed, their concerted effort is the kind
2 See New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552; N.L R.B.
v. Baltimore Luggage Company, 387 F.2d 744, 745-749 (C.A. 4).
3 Sewell Manufacturing Company, 138 NLRB 66.
4 Tanner Motor Livery, Ltd., 148 NLRB 1402 ,' 14034M, remanded 349
F.2d I (C.A. 9), original decision affirmed 166 NLRB 551, enfd . 419 F.2d
216 (C.A. 9); Mason and Hanger-Silas Mason Co., Inc., 179 NLRB 434;
Washington State Service Employees State Council No. 18, 188 NLRB No.
141.
5 N. L. R. B. v. Tanner Motor Livery, Ltd., 419 F.2d 216, 218 (C.A. 9).
273
of activity which falls within the protection of
Section 7 of the Act .4 The reason such activity is
protected is that:
The desire [for nondiscriminatory employment
practices] relates to a condition of employment
affecting the entire bargaining unit; it is not
personal to [the individual employees involved].5
Therefore, while, as we have held above, discrimi-
nation on the basis of race, color, religion, sex, or
national origin is not per se a violation of the Act,
that is not to say that such discrimination does not
directly affect terms and conditions of employment.
It clearly does, and concerted activity intended to
remedy such discrimination is protected under our
Act.
Thus, we have found that an employer violates
Section 8(a)(5) of the Act by refusing to bargain in
good faith concerning the elimination of existings or
alleged 7 racial discrimination. Similarly, we have
also held that an employer violates Section 8(a)(5) by
insisting on bargaining for union acceptance of
provisions within a supposed nondiscrimination
clause which would prevent the union from fulfilling
its duty of fair representation and expose the union
to legal liabilities under Title VII of the Civil Rights
Act of 1964.8 In addition, we have found that an
employer's unilateral elimination of the female
employees in its plant at the very moment that the
union was negotiating for equal pay for them was an
attempt to bypass bargaining with the union and was
an unlawful refusal to bargain in violation of Section
8(a)(5) of the Act.9
Finally, in an 8(a)(3) context, we have found that
an employer's discharge of female workers was
unlawful when the real reason for their discharge was
their union's attempt to negotiate better working
standards for female employees as a group or
individually.10
H. ALLEGED REFUSAL TO BARGAIN
While, as mentioned previously, a refusal to
bargain over the elimination of actual or suspected
discrimination violates Section 8(a)(5) and (1) of the
Act, we conclude in the circumstances herein that the
evidence does not establish that Respondent refused
to bargain about alleged sex discrimination and that,
if anything, the evidence shows that it was the Union
rather than Respondent who by its intransigence
6 Farmers ' Cooperative Compress, 169 NLRB 290, enfd . on this ground
416 F.2d 1126 (C.A.D.C.), cert. denied 396 U.S. 903.
r Farmers' Cooperative Compress, 194 NLRB No. 3, fn. 11; Southwestern
Pipe, Inc., 179 NLRB 364, modified on other grounds 444 F.2d 340 (C.A. 5).
8 Southwestern Pipe, Inc., supra at 374-376.
9 Edmund A . Gray Co., Inc., 142 NLRB 590.
10 Edmund A. Gray Co., Inc., supra; Bankers Warehouse Company, 146
NLRB 1197.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the beginning of negotiations prevented any
meaningful bargaining about this subject. In this
regard, we note that Earl Graham, the Union's staff
representative, walked out of the initial bargaining
session when told the ,Respondent was firm about
retaining the minimum rate provision which the
Union alleged was being used to perpetuate sex
discrimination. It was also Graham who at the final
bargaining meeting did not respond to the Respon-
dent's reclassification proposal with a counterpropo-
sal but rather declared the Union had nothing
further to offer. Furthermore, at no time did the
Union during bargaining request a broad nondiscrim-
ination clause, ask Respondent to post the material
handler jobs, or suggest that Respondent institute an
affirmative antidiscrimination policy.
In view of the foregoing, we shall order that the
complaint herein be dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER FANNING, concurring:
I agree with the majority that the complaint in this
case should be dismissed. However, I reach this
conclusion, as did the Administrative Law Judge,
solely on the ground that the General Counsel has
not presented sufficient evidence to warrant a
finding of discrimination based upon sex.
The record shows that the Employer employs a
production and maintenance force of 43 employees,
36 women and 7 men. The jobs in the lower
classifications are filled by women. The two top
paying jobs are filled by seven men and three
women. Of the men, five are classified as material
handlers, a job requiring unusual physical strength,
including the ability to unload boxes weighing
several hundred pounds. For some years the Employ-
er has had a policy of paying these employees more
than the minimum contract rate to attract and retain
in its employ individuals capable of performing such
duties. The testimony of Vice President Lewis that no
female employee had ever asked directly or through
her Union to be transferred to material handling is
uncontradicted on the record. Nor does the General
Counsel allege that any female employee has ever
been refused consideration to be so employed. No
grievance has ever been filed by, or on behalf of,
such an employee alleging that the Employer had
refused to employ her as a material handler because
of her sex. Obviously, the job of material handler is
not suited to all persons, male or female. Many men
do not have the physical strength to move heavy
objects. It would also seem clear to me that most
women are poorly equipped to perform such tasks. In
the context of these facts I cannot conclude that this
Employer has refused to employ women as material
handlers simply because they were women and not
men.
Unlike the majority, I have found it necessary to
resolve the question of discrimination before at-
tempting to answer the more complex and difficult
legal question of sexual discrimination under our
Statute. Having found no such discrimination, it
seems to me that this record is an inadequate vehicle
to present my views in this important area of labor-
management relations. Without a factual setting to
support a finding of illegality I am reluctant to state
a legal conclusion which would be, at best, mere
dicta. I therefore adopt as my own the findings of
fact and legal conclusions of the Administrative Law
Judge.
MEMBER JENKINS, dissenting:
Unlike my colleagues, I would find that Respon-
dent engaged in a practice of unlawful sex discrimi-
nation and that the foreseeable consequences of this
practice were an interference with employee rights
and the discouragement of union membership in
violation of Section 8(a)(1) and (3) of the Act we
administer. Also, unlike my colleagues, I would find
that Respondent violated Section 8(a)(5) of our Act
by insisting to the point of impasse on retaining
contractual authority to continue this unlawful
discriminatory practice.
The relevant facts are simply stated. Respondent
employs approximately 43 unit employees, 36 of
whom are women. Under Respondent's collective-
bargaining agreement with the Union, the jobs held
by members of the bargaining unit are divided into
10 classifications-Groups I through X-although,
in current practice only the classifications in Groups
I through V are used. The higher the group
classification, the higher the wage scale for those
employees.
Since 1959, all employees in the three lowest paid
groups have been females. In the second highest paid
group, Group IV, all the permanent employees are
men; while in the highest paid classification, Group
V, both male and female have been employed.
Specifically, as of the dates of the hearing, of the 10
top paying jobs (Groups IV and V), 7 were filled by
males and 3 by females. Of the male employees (7
out of 7) 100 percent occupy the two top paying
groups (IV and V) and only 8.3 percent of the female
employees (3 of 36) hold positions in these two
groups. As previously noted, no female employees
occupy jobs in Group IV. In Group V, three of the
JUBILEE MANUFACTURING COMPANY
five jobs are held by females; however, these three
women all earn substantially less than their male
counterparts even though two of the females have
greater seniority than the two males. In fact, the
senior male employee in Group IV earns the same or
more than the two most senior females in Group V.
Further evidence of Respondent's employment
practices can be gleaned from the manner in which
Respondent interpreted and applied the contractual
wage scale to attract and retain male employees.
Thus, the collective-bargaining agreement provides
minimum rates for each of these group classifications
and a 4-cent-per-hour increase for employees who
have worked over 30 days. It is undisputed that, for
more than 5 years, Respondent has been paying the
material handlers in Group IV (who are all males),
starting rates in excess of the contract's minimum
rate for this classification and, in most instances, it
exceeded the wage rate to be effective after 30 days'
employment.11 A similar practice was being followed
when Respondent gave a 10-cent-an-hour increase to
the two male employees in Group V making their
wage rates substantially higher than those of two
more senior female employees in the same- group.
These wage increases were granted for the avowed
purpose of bringing the wages of these employees in
line with the rates paid to material handlers in Group
IV and preventing the Group V males from seeking
employment elsewhere.
From the foregoing, there can be no doubt of
Respondent's preference for males in the position of
material handler in Group IV and of its policy of
granting higher wage rates to male employees even
when there were female employees similarly situated.
Of course with regard to Group IV, we have no
females similarly situated because Respondent ig-
nored contractual procedures and filled these posi-
tions from the outside. The contract provides that job
vacancies are to be filled in order of departmental
seniority and if no one suitable is available, the jobs
are to be posted plantwide and bid upon by any
employee. It is only after this procedure has been
exhausted, that the Respondent is authorized to hire
from the outside. In practice, however, no female
employee was ever offered the job of material
handler even though females in the plant generally
have more seniority than male employees. Also,
Respondent conceded that with respect to material
handler jobs it ignored the posting requirements set
forth in the contract and filled these vacancies
exclusively from the outside and that this constituted
11 Respondent sought to justify this practice on the ground that men
were generally "breadwinners" and that this was the only way it could
attract and retain them.
12 ..In cases concerning racial discrimination , statistics often tell much
and courts listen ." Parham v Southwestern Bell Telephone Co, 433 F.2d 421
(C A. 8) Obviously, the same observation may be made with respect to
275
a departure from the manner in which the jobs in
other classifications were filled.
Merely on the basis of the statistical evidence
showing the breakdown in employment and job
classifications for male and female employees at
Respondent's plant, one must conclude that at least a
prima facie case of sex discrimination has been
established.12 Of course, as I have indicated, above,
the evidence presented here encompasses more than
dust statistics. In filling vacancies for the material
handlers' classification, Respondent completely ig-
nored the bid procedures established in the collec-
tive-bargaining agreement and hired exclusively from
the outside. Furthermore, it hired only male employ-
ees for this classification and started them at a wage
rate which exceeded the minimum rate provided for
in the contract. As might be expected, no female
employee was ever hired at a starting rate higher than
her classification's minimum wage rate. The prefer-
ential wage policy for male employees was completed
when Respondent chose to raise the wage rates of
male employees in Group V to bring them in line
with the rates being paid to the male material
handlers.
In order to properly determine the effects of
Respondent's employment practices under the provi-
sions of our Act, we should first look for guidance in
that broad field of law which constitutes our national
labor policy. The National Labor Relations Act as a
piece of social legislation was not meant to be read
and interpreted in a vacuum. Rather, as I indicated
in an earlier dissent,13 the Act we administer must be
read consistently with other Federal statutes which
are a part of this national labor policy.14
The starting point in examining our national policy
concerning discrimination in employment based on
race or sex must, of course, be the United States
Supreme Court's landmark decision in Steele v.
Louisville & Nashville Railroad Co.15 There, the
Court, in defining a union's obligations under the
doctrine of fair representation, stated that discrimi-
nations based on race alone are obviously irrelevant
and invidious and Congress plainly did not under-
take to authorize the employees' bargaining repre-
sentative to make such discriminations. Since Steele,
racial discrimination in employment, whether by
unions or employers, has been unlawful and there is
no reason to believe that the principles established in
Steele would not apply with equal force to situations
where the discrimination in employment has been on
the basis of sex, rather than race. It is also well
cases involving sex discrimination See also Griggs v Duke Power Co, 401
U S. 424.
13 The Emporium 192 NLRB No 19
14 Textile Workers Union of America, AFL-CIO v Lincoln Mills, 353
U S. 448.
15 323 U S 192
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settled that the Court in Steele was not promulgating
a doctrine which had application only to situations
arising under the Railway Labor Act, but rather, it
intended that the principles enunciated in Steele
would apply with equal force in cases arising under
the National Labor Relations Act.16 This judicial
concept received further recognition with the legisla-
tive embodiment of the Steele principles in Title VII
of the Civil Rights Act of 1964 which specifically
prohibits discrimination in employment based on
race, color, religion, sex, or national origin.17
Although, the fair representation doctrine has been
a part of our national labor policy since the Court's
1944 decision in the Steele case,18 the National Labor
Relations Board has been extremely slow in giving
effect to these principles. Although the Board has
had jurisdiction over a union's unfair labor practices
since the 1947 Taft-Hartley amendments19 to our
Act, it was not until its 1962 decision in Miranda
Fue120 that the Board found an unfair labor practice
in a union's breach of its duty of fair representation.
In Miranda Fuel, a majority of the Board held that
Section 7 of our Act gives employees the right to be
free from unfair or irrelevant or invidious treatment
by their exclusive bargaining agent in matters
affecting their employment and that Section
8(b)(1)(A) of the Act prohibits labor organizations,
when acting in a statutory representative capacity,
from taking action against any employee upon
considerations or classifications which are irrelevant,
invidious, or unfair.21 The Board majority also held
that an employer who participates in such arbitrary
union conduct violates Section 8(a)(1) and the
employer and the union may violate Section 8(a)(3)
and 8(b)(2), respectively, when, for arbitrary or
irrelevant reasons or upon the basis of an unfair
classification, the union attempts to cause or does
cause an employer to derogate the employment
status of an employee.22
Although the Board's Miranda Fuel decision was
denied enforcement by the United States Court of
Appeals for the Second Circuit,23 the doctrine was
later upheld by the United States Court of Appeals
for the Fifth Circuit.24 Any further doubts concern-
ing the viability of the doctrine were resolved by the
United States Supreme Court's decision in Vaca v.
Sipes, when the Court seemingly gave full recognition
and approval to the Board's Miranda Fuel doctrine
16 Wallace Corporation v N L R B, 323 U.S 248, Ford Motor Co. v
Huffman, 345 U S 330, Humphrey v Moore, 375 U S 335
11 42 U S C §§ 2000e-2(a), etseq
18 The applicability of this doctrine to cases arising under the National
Labor Relations Act was announced by the United States Supreme Court
on the very day it handed down its historic decision in the Steele case See
Wallace Corp v N L R B, supra.
19 Labor Management Relations Act of 1947, 29 US C § 158(b).
20 Miranda Fuel Company, Inc, 140 NLRB 181
and, in fact, criticized the Board for its "tardy"
assumption of jurisdiction in these cases.25
As indicated, under our Miranda Fuel doctrine, air
employer may itself be guilty of unfair labor
practices under our Act when it joins the statutory
representative in acting against employees on invidi-
ous or irrelevant considerations. But what of situa-
tions where the employer is alone responsible for
establishing and maintaining employment practices
which are based on invidious or irrelevant considera-
tions? Are not such practices just as inherently
destructive of employees' Section 7 rights as those
engaged in by a union and, if so, has not the
employer interfered with these employee rights in
violation of Section 8(a)(1) of our Act? In United
Packinghouse, Food and Allied Workers International
Union, AFL-CIO v. N.L.R.B.,26 the United States
Court of Appeals for the District of Columbia gave
us its- answers to these vexing problems. There the
court, in remanding the case to us, held that an
employer's maintenance of racial discrimination in
his employment practices violates Section 8(a)(1) of
our Act because it creates an "unjustified clash of
interests" among the employees which tends to
reduce their ability to work in concert toward their
legitimate goals, and because it creates among its
victims "an apathy or docility" which inhibits them
from asserting their rights in the employment
relation. On remand, of course, the Board was
obligated to accept the court's rationale as "the law
of the case." However, in resolving the issues open to
the Board on the remand, my colleagues concluded
that the evidence did not support a finding that the
employer had maintained a policy and practice of
invidious racial discrimination against its employees
on account of their race or national origin. As a
consequence of this determination, my colleagues
were not required to apply the court's rationale and,
in fact, expressed no opinion on it.27 I dissented
because, in my view, the evidence established that
the employer was discriminating on racial and ethnic
grounds in its employment practices and policies
and, under the principles laid down by the court,
such conduct constitutes a violation of Section
8(a)(1) of our Act. As I indicated in my dissent:
It is the divisiveness, induced and fostered
among the employees by the "clash of-interests"
which the employer's racial discrimination cre-
21 Id at 185.
22 Id at 185-186
23 N L R B v. Miranda Fuel Co, Inc, 326 F.2d 172 (1963).
24 Local Union No 12, United Rubber Workers [Goodyear Tire & Rubber
Co J v. N L R B, 368 F 2d 12, cert denied 329 U S 837.
25 386 U.S. 171, 183.
26 416 F 2d 1126, cert denied 396 U S 903.
27 Farmers ' Cooperative Compress, 194 NLRB No. 3
JUBILEE MANUFACTURING COMPANY
ates, which is the source of the unlawful restraint
and interference with the employees' exercise of
their concerted rights. The employees are forced
to expend their time, effort, and money to
eliminate a condition of employment based on
invidious differentiation (race) which is unlawful
and thus should never have existed.
If one were to accept guidance from the principles
I have discussed, above, we would of necessity be
constrained to conclude on the basis of the evidence
before us that Respondent's employment practices
were violative of our Act. Certainly, the fact that we
are involved here with discrimination based on sex
rather than race is of no significance. The same
principles apply to all such forms of discrimination
as my colleagues readily admit. Unfortunately, my
colleagues in the majority are, in my judgment,
willing to give only limited application and effect to
our national labor policy and they specifically reject
the court's interpretation of that policy in the United
Packinghouse Workers case, supra. Member Fanning,
on the other hand, finds insufficient evidence to
establish that Respondent discriminated on the basis
of sex and, consequently, he finds it unnecessary, at
this time, to pass upon the court's rationale in United
Packinghouse Workers.
As I understand Member Fanning's concurrence,
he accepts Respondent's representation that the job
of material handler requires unusual physical
strength, including the ability to unload boxes
weighing several hundred pounds and, from this, he
concludes that the job is one which most women are
poorly equipped to perform. While I am willing to
concede that in certain employment situations the
sex of the individual is a bona fide occupational
qualification for the position,28 I do not think it
proper to engage in broad generalizations which are
too often based on stereotyped characterizations of
he capabilities of men and women. In other words,
the mere fact that a job involves the use of physical
strength does not automatically remove members of
the female sex from consideration. Rather, it must be
demonstrated that women as a class have been
unable to meet the physical requirements of the job
and the burden of establishing that sex is a bona fide
occupational qualification is upon the party raising
it.
The principal difficulty I have with Member
Fanning's conclusion is that it is based on testimony
which is purely conclusionary in nature and drawn
from an examination of job classifications which
were prepared some 20 to 25 years ago. Perhaps
today, the job requirements for material handlers at
28 It is significant that, under Title VII of the Civil Rights Act of 1964, an
exception to the overall proscriptions is provided in circumstances where
sex is a bona fide occupational qualification reasonably necessary to the
277
Respondent's plant are the same as they were some
20 years ago, but it is just as likely that significant
changes have occurred over the years. More impor-
tant, in point of fact, we know nothing about the
present day job requirements for material handlers at
Respondent's plant. Nor do we know whether or not
the physical qualifications for employees in one
group classification differ in any way'from those in
another classification. Simply stated, the record
before us contains no specific evidence concerning
the physical requirements for the different job
classifications at Respondent's plant. What we are
left with then is Respondent's undocumented and
unsupported assertion that, at present, the job of
material handler requires great physical ability and
that this consideration necessitates and justifies the
hiring of only males for this position. Furthermore,
Respondent seems to ask us to assume that the
necessary physical characteristics are to be found in
all males, because there is no evidence that Respon-
dent evaluates the physical attributes or abilities of
the males it selects. I think Respondent has clearly
failed to meet its burden of establishing that its prima
facie discriminatory employment practices are justifi-
able in light of the special requirements of the job of
material handler.
Moreover, even if I were to accept Respondent's
representation that this position requires great
physical strength, which on this record I cannot, I
would be unwilling to conclude on the basis of this
evidence alone that females, as a class, do not possess
the necessary qualifications to perform the work.
Such a conclusion would be valid only if Respon-
dent's hiring experience demonstrated that females
generally failed to possess the physical qualifications
necessary to perform this work. However, no such
characterization can be made here because Respon-
dent's practice has been systematically to exclude
females from consideration for the position of
material handler. This also, in large part, explains the
failure of the female employees to grieve over
Respondent's total disregard of the bid procedures
established in the collective-bargaining agreement.
When, as here, the discriminatory practice is of
longstanding duration and total in its application,
employees may well conclude that it would be a
futile gesture to insist upon being considered for jobs
which Respondent believes they are not qualified to
perform. In any event, the absence of any acts of
discrimination against any specific individual proves
nothing when it has already been established that
Respondent's practices constitute and result in
discrimination against individuals as a class. Nor
normal operation of that particular business or enterprise . See 42 U S C §
2000e-2(e)
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does it matter that Respondent may not have
intentionally sought to produce such a result. The
unlawfulness of the practice is determined by the
consequence it produces, rather than by the motiva-
tion behind it.29 In sum, then I feel constrained to
conclude that Respondent discriminated on the basis
of sex with regard to its employment practices and
policies and that such conduct is contrary to our
national labor policy.
Turning now to the arguments raised in the
majority opinion, I note, at the outset, that my
majority colleagues agree that discrimination on the
basis of sex is on an equal footing with discrimina-
tion based on race. Also, unlike Member Fanning,
they are willing to concede that the evidence before
us may very well establish that Respondent's
employment practices resulted in discnmination on
the basis of sex.30 The majority's unwillingness to
find a violation under our Act is based on the theory
that there is no direct relationship between the
discriminatory practices, which have been described,
and the fundamental rights accorded to employees
under the provisions of the National Labor Relations
Act. In short, they reject the view that employment
practices which are discriminatory and unquestiona-
bly illegal under Federal law have, of necessity, the
inherent effect of interfering with employee rights
under our Act. To the "show how he or she was hurt"
argument, I readily admit there is very little I can say
except to answer that this only proves how wide-
spread and successful were the illegal practices. Such
a position rejects the Supreme Court's rationale in
Griggs, supra, and the court of appeals rationale in
United Packinghouse Workers, supra.
The majority believes it is by no means inevitable
that such discriminatory practices will result in the
destruction of employee rights under our Act. To the
argument that such practices produce an unjustified
clash of interests among groups of employees, they
reply that it is just as likely that the effect may be one
of causing minority groups to coalesce and unite in
common purpose with nonminority group members.
That is, they expect the beneficiaries of the unlawful
practice to join hands with the victims.
Such arguments were made when Congress was
considering the enactment of legislation which is now
the Civil Rights Act of 1964. The claim was then
29 Griggs v Duke Power Co, 401 U S 424
30 In reaching their conclusions , my majority colleagues find it
unnecessary to determine whether or not Respondent's employment
practices, in fact, constituted sexual discnmination
31 In other situations , arising under our Act, we presume that an
employer's restrictive practices are inherently destructive of employees' Sec.
7 rights without requiring specific evidence as to the effects on individuals
of the restrictive practice For example, we will find unlawful and strike
down an overly broad no-solicitation rule without regard to its actual
application or enforcement , simply because such a rule has a general
inhibiting effect on employees in the exercise of their Sec. 7 rights See
made that no additional safeguards or protections
were necessary because of a general awareness on the
part of blacks and other minority groups of their
fundamental rights as American citizens and their
increasing involvement and willingness to act in
concert in defense of these rights . However , the Civil
Rights Act of 1964 was enacted into law because of
the overwhelming evidence that large segments of
our population were being denied fundamental rights
that this legislation was designed to protect. The
individuals discriminated against cannot and should
not be expected to take the steps necessary to
establish that Respondent specifically discriminated
against each and every one of them.31
For reasons stated , I would find that Respondent's
illegal employment practices and policies were
inherently destructive of employee rights under
Section 7 of our Act and, further, that Respondent
by engaging in such practices unlawfully discriminat-
ed against its female employees .32 Accordingly, I
conclude , contrary to my majority colleagues, that,
by such conduct, Respondent has violated Section
8(a)(1) and (3) of our Act.
Consistent with the foregoing , I would also find,
contrary to my majority colleagues ,33 that during
contract negotiations Respondent insisted to the
point of impasse upon retaining contractual authori-
zation to continue its discriminatory practices and by
so doing engaged in conduct violative of Section
8(a)(5) of the Act. As the record clearly shows,
Respondent interpreted the word "minimum" in the
wage clause of the existing contract as permitting it
to pay higher wages and grant special increases
above the contract rate in order to attract and keep
male employees . In other words , Respondent inter-
preted the wage clause as permitting the payment of
whatever rates it chose, over and above the minimum
rates spelled out in the contract . When the Union
learned that certain male employees were being paid
rates of pay higher than those called for in the
contract , it asked Respondent to explain its justifica-
tion for such action. Respondent replied by offering
its interpretation of the word "minimum" in the wage
provision of the existing contract.
When the existing contract expired , the Union
proposed at the first negotiating session that the
word "minimum" be deleted from all future con-
Joseph Horne Co., 186 NLRB 754.
32 My majority colleagues ' comparison of a situation where a union has
failed to eliminate a practice of invidious discrimination with one where the
union has failed to gain an economic concession from an employer is
curious Of course , both actions may have the foreseeable consequence of
discouraging union membership among employees, but the former is the
product of an unlawful activity , whereas the latter is based on legal and
legitimate considerations
33 Member Fanning does not reach this precise issue because of his
conclusion that the evidence does not establish that Respondent engaged in
discriminatory employment practices
JUBILEE MANUFACTURING COMPANY 279
tracts. Respondent refused and indicated it intended
to continue the practice because it felt that it had to
pay more money "to attract the men off the street in
the first place," and because it felt the "men" were
the "breadwinners" in the family. To the Union's
accusation that this action was in violation of
Federal and state law, Respondent replied "that if
there was a law against giving merit raises it was a
funny law."
The parties had three bargaining sessions, the last
two of which were held under the auspices of Federal
mediators, but they remained deadlocked over the
issue of whether the word "minimum" should be
deleted from the contract. Following these meetings,
Respondent, at one point, offered to adhere to the
minimum rates for a year, but with the added proviso
that it would inform the Union if it needed to exceed
the rates. This proposal was correctly characterized
by the Administrative Law Judge as not a real
change of position and the Union made no effort to
respond to this proposal. However, the Union did on
several occasions attempt to get together with
Respondent, but to no avail. Finally during a chance
encounter between Union Representative Graham
and Respondent's vice president, Lewis, about a
month and half after the last bargaining session,
Graham proposed to Lewis that the parties meet
again to resolve the issues. Lewis replied: "Well, this
has went [sic] too far now, I don't see how we
possibly could, we have to have the right to give the
men more money so that we can get men in the
plant."
I have already described in detail Respondent's
discriminatory employment practices, and it will
suffice to point out here that it was through
Respondent's interpretation and implementation of
the wage provision in its contract that it was able to
effectuate these discriminatory policies. Therefore,
when, during negotiations, Respondent adamantly
insisted upon the retention of the minimum wage
clause, it was in fact insisting upon the right to
continue its discriminatory practices. To such a
condition, the Union could not legally agree because
the Union would itself then be equally responsible
for perpetrating sex discrimination.34 Moreover, by
agreeing to such a condition, the Union would be
violating its statutory obligation of fair representa-
tion toward all unit employees.35
It is not surprising, then, that the Union found no
legitimate basis on which it could agree to Respon-
dent's proposal. The Union offered no counterpropo-
sal, but, again, one would be hard pressed to devise a
proposal which would be acceptable to one who
insists upon the "right" to discriminate. In any event,
it was at this juncture that the Union abandoned any
further formal meetings with the Respondent and my
majority colleagues are quick to point to this as the
crucial event in the bargaining negotiations. They
might be correct if the evidence indicated any
softening of its position by Respondent. However,
the evidence is quite to the contrary. At the
conclusion of the formal negotiations, Respondent
was still adamant about retaining the right to
continue its illegal practices. Following this, Respon-
dent made only one change in its proposal which the
Administrative Law Judge found constituted no real
alteration of its position. On the other hand, the
Union made several efforts to resume the negotia-
tions only to be rebuffed by the final comment that
Respondent considered its interpretation of the
minimum wage provision necessary to its continued
operations.
In such circumstances, I can only conclude that
Respondent insisted to the point of impasse upon
retaining the right to continue its discriminatory
practices and that it also failed to accord the Union
the full recognition to which it is entitled under the
Act. Such conduct constitutes a refusal to bargain
within the meaning of Section 8(a)(5) of the Act.36
In conclusion then, I would reverse the Adminis-
trative Law Judge and find the 8(a)(1), (3), and (5)
violations which are predicated upon the Respon-
dent's practice of sex discrimination. In all other
respects, I would affirm the Administrative Law
Judge's dismissal of the allegations of the complaint.
34 Vaca v. Sipes, 386 U.S. 171.
35 Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192; Miranda
Fuel Co., 140 NLRB 181, enforcement denied 326 F.2d 172 (C.A. 2).
36 Southwestern Pipe, Inc., 179 NLRB 364, modified on other grounds
444 F.2d 340 (C.A. 5).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: This proceeding
with all parties represented was heard on May 18 and 19,
1971, at Omaha, Nebraska, on the complaint of the
General Counsel issued on March 26, 1971,1 and the
answer of Jubilee Manufacturing Company, herein called
the Respondent or Company. In issue are questions
whether the Respondent, in violation of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended,
maintained a policy and practice of granting wage
increases and paying wage rates to male employees based
solely upon the consideration of sex; refused to bargain
with the Union by insisting to impasse during bargaining
negotiations upon retaining a contract provision which it
had used as a basis for unilaterally granting wage increases
and paying wage rates to its employees on a sexually
I The complaint is based on original and amended charges filed by
United Steelworkers of America, AFL-CIO, herein called Charging Party
or the Union, on August 12, 1970, and March 18, 1971, copies of which were
duly served on the Respondent by registered mail on August 12, 1970, and
March 19, 1971, respectively.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory basis; unilaterally changed existing terms
and conditions of employment; and advised employees
that it would not hold plant committee meetings until a
contract was signed because of the trouble the Union had
caused. On June 28, briefs were received from the General
Counsel, the Respondent, and the Union in support of
their respective positions. By letter of the same date, June
28, Respondent requested permission to file a reply brief
because the case in its main aspect is one of "first
impression." The request was unopposed and, on July 7,
Acting Chief Trial Examiner Charles W. Schneider granted
each party until July 19 to file a final memorandum in the
nature of a brief. On July 19, a memorandum was received
from the Respondent.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the arguments advanced by the parties, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Nebraska corporation, is engaged in the
manufacture and distribution of automobile horns and
burglar alarms at its facility located in Omaha, Nebraska.
Annually, in the course and conduct of its business,
Respondent sells and distributes products valued in excess
of $50,000 directly to customers located outside the State
of Nebraska.
It is conceded, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
For about 20 years, the Company has recognized the
Union as the bargaining representative of the production
and maintenance employees at its Omaha plant. Through-
out this period, the parties have entered into numerous
annual contracts and have enjoyed a friendly and
harmonious collective-bargaining relationship. Except for
modifications in wage schedules, there have been few
changes in contract terminology. Among contract provi-
sions which have remained substantially unchanged for
many years is the following:
Section IV Wages
(a) Job classifications and minimum rates of pay within
2 At the close of the General Counsel's case, the Trial Examiner granted
a motion by the Respondent, unopposed by the General Counsel, to dismiss
par 11(b) of the complaint which alleged interrogation of employees in
violation of Sec 8(a)(1) of the Act.
3 The evidence is without substantial conflict However , where there is
conflict as to any relevant fact the Trial Examiner will set forth the
resolution of the credibility issue
the bargaining unit shall be as set forth in Exhibit "A"
attached hereto and by this reference made a part
hereof.
The most recent collective-bargaining contract between the
parties was effective for the period July 1, 1969, to June 30,
1970.
In 1970, the Company employed from 44 to 48 unit
employees about two-third's of whom were female employ-
ees. Under the 1969 contract, employees are classified by
groups. The groups are in fact job classifications and
reflect wage rates in ascending order from Group I through
Group X. In practice, however, Groups I through V are the
only classifications utilized. Since about 1957 the fobs in
Groups I, II, and III have been filled by female employees,
those in Group IV by male employees, and positions in
Group V by both male and female employees.
B. The Evidence3
1. Alleged policy and practice of paying wage
rates and granting wage increases upon
consideration of sex
The facts disclose clearly enough that, for the past 10
years, the contract language with respect to minimum rates
of pay has remained substantially the same and that, for at
least the past 5 years, the Company has been paying rates
in excess of the minimum to material handlers or floor
boys? Vice President Lewis testified that, at a bargaining
session prior to 1967, a company spokesman explained to
Floyd Pieper, staff representative of the Union,5 that the
Company had been unable to fill job positions requiring
manual labor and advised that in order to attract
employees to the plant the Company had instituted a
practice of paying material handlers above the minimum
rates. According to Lewis, it was commonly known at the
negotiating meetings that the Company was paying these
employees in excess of the minimum, and the Union
acceded to what the Company was doing rather than
attempt to reclassify everyone in the bargaining unit. Lewis
also testified that a job vacancy is filled on the basis of
seniority but if there are no applicants it is posted. He was
uncertain whether the job of material handler had ever
been posted but acknowledged that a female employee has
never been offered the job. I found Lewis to be a candid
and forthright witness entitled to full credence and I credit
his testimony. Graham and Bessie Bates, a retired
employee and past president of the local, denied that the
Company had ever told the Union it was paying the
material handlers above minimum rates and averred that
they first learned of the practice in April 1970 or later.6 I
cannot accept this testimony of Graham and Bates. To
begin with, it is unreasonable to believe that in a unit
which in past years has only fluctuated between 35 to 48
employees, the bargaining representative would not have
known the actual earnings of each member of the unit,
4 Exit A attached to the 1969 contract contains a listing of minimum
starting rates for the various classifications covered by the contract and,
opposite each , the pay increase after 30 days. The practice pursued by the
Company was to grant material handlers the 30-day increase upon hire
5 Pieper retired in about 1966 and was succeeded by Earl Graham
6 According to a stipulation of the parties, Pieper was not called as a
witness because of "advanced age and relative infirmity."
JUBILEE MANUFACTURING COMPANY 281
particularly since contracts were negotiated annually and,
as shown below, since the information was readily
available to the Union. Further, Eileen Johanek, a witness
for the General Counsel and Charging Party, testified that
she had never applied for but would welcome a transfer to
the job of material handler because it pays more than her
present position. In this regard, Lewis reported that none
of the female employees had asked to be transferred to the
work. Johanek went on to confirm an earlier statement of
Lewis to the effect that the material handler's job had been
discussed at negotiating meetings . It is a reasonable
inference from this testimony of Johanek that such
discussions centered on the fact that the job paid more
than the minimum rate . As to Bates , the witness was
confused about the starting and termination dates of her
employment with the Company, vacillated and was
uncertain as to whether the 1969 contract contained a
funeral leave provision (it did), and generally gave the
impression of one hampered by a faulty memory. In view
of the foregoing, as well as demeanor, I regard the
testimony of Graham and Bates as unreliable and do not
credit their denials of Lewis' testimony.
Sometime in early April 1970, Johanek and Esther
Sousa, treasurer and financial secretary of the local
committee, respectively, told Graham that Paul Klaczinsky
and Wasyl Gryshka would or had each received a 10-cent
raise. Graham confirmed the reports in conversations with
the beneficiaries of the raises and then instructed Johanek
and Sousa to file a grievance with the company alleging a
violation of the recognition clause of the contract.
Significantly, Graham's initial complaint was not that the
Company had exceeded the minimum rates but had
violated the recognition provision. On or about April 13, a
grievance was presented to and rejected by the Company
and, shortly after this, the local's officials reported the
result of their effects to Graham. Graham promptly called
Plant Manager Joseph Davis and requested a meeting. In
response, Davis advised that he saw no need to meet as the
Company had the right to give raises whenever it desired.
Ten or 15 minutes later, Vice President Lewis called
Graham and, elaborating on Davis' reply, declared that,
under the wording "minimum rates of pay" in section IV
of the contract, the Company had the right to grant raises
at will. Graham insisted on a meeting and Lewis promised
to contact his attorney. Eventually, Graham agreed to
defer further discussion of the grievance until the start of
contract negotiations.
As to this aspect of the allegation, Lewis testified,
credibly and without contradiction, that in early spring
1970 he heard rumors to the effect that Klaczinsky and
Gryshka, a spray painter and material handler in Group V,
respectively, were unhappy about their rates of pay
because they were about the same as those of material
handlers recently hired; that both were valuable employees
7 Corroborated in this regard by Sousa.
8 Julia Degen and Lewella Watson.
9 Degen.
10 Sousa.
11 Initially , the operator of this press was required to unload steel and
handle other heavy materials. In time , the Company dropped these
requirements and opened the job to women.
12 Respondent objected to the introduction of statements by Lewis
with many years of satisfactory service; and that the
Company gave each a 10-cent-per-hour wage increase to
retain them as employees. Continuing Lewis testified that
the jobs are not classified on the basis of sex; 7 that in April
1970 two female employees8 were in Group V, one9 of
whom was being paid above minimum rate about the time
Klaczinsky and Gryshka received their increases; and that
another female employee 10 was recently promoted to the
position of Verson press operator also in Group V.11
2. Alleged refusal to bargain in good faith
during negotiations
In response to the Union's request, the Company by
letter dated April 20 furnished a seniority list which
showed, among other things, the anniversary dates and
rates of pay of the bargaining unit employees. The Union
presented its contract proposals sometime prior to June 10;
bargaining meetings were held on June 10, July 16 and
about July 26. The last two were arranged by a Federal
mediator and were held in his office. The progress of the
negotiations may be summarized as follows:
a. The meeting of June 10
At the outset of the meeting, the parties discussed the
seniority list the Company had provided in advance of the
meeting . After this the Company reviewed the Union's
proposals and, about this point, the meeting centered on
item 2 therein which was a demand for the elimination of
the word "minimum." Company Attorney Soren Jensen
stated that he could not understand the demand, that the
Company had given increases under the contracts for a
long time and did not intend to change the minimum rates
provision. Graham then asked if it was the position of the
Company that the word "minimum" gives it the right to
pay increases at will and, if so, whether it intended to
continue the practice in the future. Lewis answered in the
affirmative and went on to explain that the word
establishes a floor as far as pay rates are concerned and the
Company was thus free to grant merit increases if it desired
to do so. Continuing Lewis advised that the Company had
to pay above minimum rates to attract male employees to
available job and had given Klaczinsky and Grychka merit
increases because they were "breadwinners" and in order
to retain them as employees. About this juncture, Graham
declared that, in his lights, the Company's practice
constituted a violation of federal and state equal employ-
ment opportunity statutes and the National Labor Rela-
tions Act as well. Lewis retorted that only the Company
can give merit increases and he did not intend to surrender
the right, and that if there is a law against paying such
increases it is a "funny law." 12 At some time, Jensen told
Graham that he had one of two alternatives, to arbitrate
the disputed contract provision or to negotiate with regard
characterizing employees who had received merit increases "breadwinners"
and any law which restricts his right to give such increases a "funny law" on
the ground that they were privileged expressions under Sec. 8(c) of the Act
and, therefore , may not be used as evidence of an unfair labor practice. At
the hearing, the General Counsel represented that the statements were
offered for background purposes only. I now affirm my ruling admitting
into evidence the quoted remarks. As the Board emphasized in Darlington
Manufacturing Company, 165 NLRB 1074, 1079:
(Continued)
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the word "minimum." In the end Graham announced
that, if the statements of Lewis and Jensen reflected the
Company's position, the meeting was over and, turning to
the members of the local committee, said "Come on, let's
leave" and they left.
b. The meeting of July 16
At the beginning of the July 16 meeting, the Union
reviewed its proposals, the Company made a brief
statement and, following this, the parties were separated by
the Federal mediator for independent discussions with
him. When they met again, Robert Andersen, another
company attorney, stated that the fringe benefits in the
Union's proposals totaled about 24 cents per employee and
that this was too much for the Company. He then offered
to pick up an additional insurance premium payment and
to give a wage increase of 4 cents per hour across-the-
board with no fringe benefits. The proposal was rejected by
the Union. At this point a company spokesman asked
Graham where he would start and he suggested 10 cents
per hour. This time the proposal was rejected by the
Company. Pursuant to a suggestion by the mediator, the
Company proposed, and the Union did not oppose, a
reclassification of all jobs covered by the contract. Finally,
Lewis restated the Company's basic position, namely, that
the phrase "minimum rates of pay" establishes a floor or
the basic rates and the Company was at liberty to exceed
the rates at will. The explanation prompted Graham to
remark "it [minimum ] has to come out of the contract now
that you've interpreted it that way."
c. The meeting on or about July 26
At the outset of this meeting, the third and last
bargaining session, the Company presented its reclassifica-
tion proposal and then stated that it would adhere to the
minimum rates therein but, if it ever became necessary to
exceed the rates to keep the plant in operation, it would
advise the Union of the changes. Graham rejected the
proposal on the ground that it allegedly constituted a
violation of the Civil Rights Act of 1964.
The parties were again separated and, 20 or 30 minutes
later, the mediator met with the union committee at which
time he advised that the Company's position was firm on
all matters and that unless the Union was prepared to
make a counterproposal there was no place to go. Graham
inquired whether the Company still sought to retain the
word "minimum" and the mediator responded in the
affirmative. Graham then said, "Well, as far as we are
concerned it isn't our move, and we have nothing further to
offer at this point, based on the fact that the Company is
insisting upon the word minimum." This brought to an end
the last formal bargaining meeting.
During a fortuitous encounter in a local shopping center
on or about September 11, Graham proposed to Lewis that
The legislative background also makes clear, however, that this section
[8(c)] left unrestricted the Board's right to consider employer
statements for purposes for which they would be ordinarily admissible
in courts of law
Thus, it is firmly established that statements protected under Sec 8(c) are
nevertheless admissible to show background, motivation, or context See
also Edwards Brothers, Inc, 95 NLRB 1451, 1452 In 2; Cf US. Rubber
the parties meet again to resolve the issues. Lewis replied
that the matter had gone too far and that the Company
had to have the right to pay above the minimum rates to
attract employees to the plant.
3. Alleged interference, restraint and coercion
Janet Bolan, employed by the Company about 3 years
and president of the local since July 1970, testified that in
the past it had been the practice for the shop committee to
discuss employee grievances with the foreman concerned,
then with the plant superintendent, and finally to file a
written grievance if the matter was still unresolved.
Sometime the latter part of August, Bolan requested a
meeting with Superintendent Davis to discuss a plant
problem. According to Bolan, Davis agreed to meet with
the shop committee but, in the afternoon of the scheduled
meeting, canceled the meeting . Queried as to the reason for
his action, Davis replied, according to Bolan, that it was
"because of all the trouble Mr. Graham had stirred up and
that we had not signed a contract and he would not hold
any committee meetings. The only meetings he would hold
would be safety committee meetings." Bolan acknowl-
edged, however, that the grievance was later reduced to
writing and promptly handled by the Company to her
satisfaction. In Davis' version, Davis inquired as to nature
of the problem but Bolan refused to respond so he told her
to put the complaint in writing as required by contract.i3
He also testified, without contradiction, that, shortly after
becoming plant superintendent in February 1970, he
announced to the entire shop that it would be his policy
not to hold committee meetings during production time.
Further, Davis specifically denied telling Bolan that
Graham had created a problem, that there would be no
contacts with the Union until a contract was signed, or that
he would only hold safety committee meetings . As to the
latter, Davis went on to say that he told Bolan it was not
necessary to reduce a request for a safety committee
meeting to writing. I credit Davis' version of the episode
over that of Bolan as it contains a fair amount of
corroborative detail which tends to buttress his account.
Accordingly, I shall dismiss the allegation in paragraph
11(a) of the complaint to the effect that Davis told
employees the Respondent "would not hold any more
plant committee meetings until the contract was signed
because of the trouble the Union had stirred up" for the
reason that it is not substantiated by the credible evidence.
As stated above, Respondent's unopposed motion to
dismiss paragraph 11(b) of the complaint alleging an
unlawful interrogation of employees concerning their
union activities was granted at the hearing.
In his brief, the General Counsel argues that certain
remarks of Lewis to the Union's negotiating committee in
which the terms "breadwinners" "funny law" were
employed, related in detail above, contained implied
Company, 93 NLRB 1232, 1233 In. 2, Axelson Manufacturing Company, 88
NLRB 761, 765-766
13 Sec VI(c)(2) therein provided that "If a satisfactory adjustment of
such grievance shall not be reached in step 1, the grievance shall be
presented to the Company's designated representative in writing , and a copy
furnished the Union Grievance Committee
JUBILEE MANUFACTURING COMPANY 283
threats of reprisal, were coercive in nature and, inferential-
ly, are violative of Section 8(a)(1). During the hearing, the
General Counsel represented, as noted, that the said
statements were being offered for background purposes
and not as a basis for a finding of an unfair labor practice.
The representation was relied on by the Respondent and
the Trial Examiner. No explanation is offered for the
change in position and the Trial Examiner will not
speculate as to the reasons therefor. In any event, it is
patent, and I find, that no threat or coercive purpose is
indicated by these statements of Lewis.
4. Alleged unilateral change in existing terms and
conditions of employment
Under section XV of the collective-bargaining contract,
which as noted expired on June 30, 1970, the Company
agreed to continue a group hospitalization and surgical fee
insurance for the term of the basic contract; to pay all
premiums on the said insurance for full-time employees;
and to pay $1.60 per month toward the cost of a group
health and accident insurance plan for such employees
who elect to participate in the health and accident
insurance plan. The prime carrier of both insurances was
Blue Cross-Blue Shield and the Company paid the
premiums on both policies to Blue Cross. However, Blue
Cross had subcontracted the health and accident insurance
to Northwestern National Life Insurance Company.
Sometime in the summer of 1970, Paul J. Novak, a
contact man with Blue Cross, told Lewis that Blue Cross
was changing the carrier of the health and accident
insurance from Northwestern National to The Standard of
America Life Insurance Company, that the coverage would
probably be the same but, if different, Blue Cross would
honor a claim filed under the old policy, and that the
premiums would be reduced. In point of fact, there were
significant changes in coverage as follows: the period of
payment of accident and sickness benefits was reduced at
age 60 from an aggregate of 26 to 13 weeks and all benefits
terminated at age 65. Further, William F. Ryan, secretary
and general counsel for Blue Cross, testified that a claim
filed under the old policy by a covered employee over 60
would not be honored by Blue Cross. On August 26, the
Company posted the following:
NOTICE TO ALL EMPLOYEES
Effective October 1, 1970, the monthly cost of H & A
insurance will be decreased by fifty five cents ($ .55).
The new cost per employee will be $3.90 per month
instead of $4.45. Same coverage as before.
Any eligible employee who wishes to enroll in this
Health & Accident plan, should do so immediately.
Concededly, Lewis never communicated directly with
Graham or any officer of the local about the change in
insurance carrier. Indeed, as late as the date of his
appearance as a witness in this proceeding, Lewis had not
examined the new policy.
C. Concluding Findings
1. With regard to discrimination in employment
The complaint alleges, and the answer demes, that "the
Respondent has maintained, and is maintaining, a policy
and practice of granting wage increases and paying wage
rates to male employees . . . based solely upon the
consideration of sex"; that it has engaged in the aforemen-
tioned conduct in spite of the Union's efforts to stop it;
and that a foreseeable consequence of the Respondent's
conduct is to discourage employee support of the Union,
all in violation of Section 8(a)(3) and (1) of the Act. In his
brief, the General Counsel contends that the Respondent
has granted wage increases and paid above mimmum rates
to male employees for arbitrary or irrelevant reasons and
on the basis of an unfair classification; that it pursues a
policy and practice of sex discrimination despite efforts by
the Union, pursuant to its 9(a) obligation of fair represen-
tation, to resist them; and that such adamancy on the part
of the Respondent "demonstrates to the unit employees the
Union's ineffectualness in such statutorily obligatory
efforts." 14 The General Counsel does not contend that the
Respondent has discriminated against its female employees
in the bidding for or filling of job vacancies and, in fact,
concedes the absence of any evidence of discrimination in
this regard.
Admittedly, there is no legal precedent for the proposi-
tion that an employer violates the Act by sex discrimina-
tion. The General Counsel relies, however, on a holding by
the United States Court of Appeals for the District of
Columbia Circuit with regard to discrimination on account
of "race or national origin." 15 In Farmers' Cooperative
Compress, i6 the Board found, inter alia, that the Employer
had violated Section 8(a)(5) and (1) by refusing to bargain
in good faith over the terms and conditions of employ-
ment, including the conditions of racial discrimination,
and ordered the Employer to cease and desist therefrom
and to take certain affirmative action to remedy the unfair
labor practices. The Board's Order was enforced on
appeal.17 However, Judge J. Skelly Wright, speaking for
the circuit court, held that an employer's policy and
practice of invidious discrimination against its employees
on account of race or national origin interferes with or
restrains the discriminated employees from exercising their
Section 7 rights in violation of Section 8(a)(1) of the Act
and remanded the case to the Board to determine whether
the Employer has such a policy and practice and, if so, to
devise an appropriate remedy. As of this writing, the Board
has not found that the Employer in Farmers' Cooperative
Compress violated Section 8(a)(1) and, while the circuit
court recognized that such a violation could exist, it did not
so find.
The General Counsel's contentions stand the case on its
head because central to his thesis , assuming validity therein
for the purpose of discussion only, must be the underlying
fact of discrimination an element conspicuous by its
absence in this case. The General Counsel insists, however,
14 Citing Miranda Fuel Company Inc, 140 NLRB 181, enforcement (C A D.C.), cert. denied 396 U.S 903
denied 326 F.2d 172 (C.A 2) 16 169 NLRB 290
15 United Packinghouse, Food and Allied Workers International Union,
AFL-CIO (Farmers' Cooperative Compress) v. NLRB, 416 F.2d 1126
17 See fn. 15, supra
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the evidence is sufficient to sustain a finding of
discrimination and in support of his position points to
copies of dues checkoff lists for the months of February
and April 1971 which show that 15 fewer employees had
their dues checked off in April than in February. In this
regard, Local President Bolan testified initially that
employees whose names were left off the April list were
still employed by the Respondent though no longer union
members.18 However , on cross-examination , Bolan admit-
ted that at least two employees on the February list were
not employed by the Respondent as of April 1.19 Further,
Bolan acknowledged that she has not received a letter of
resignation from any employee , and has not talked to and
does not know why any of the 13 remaining employees
dropped out of the Union . In view of the self-contradiction
and the confusing state of Bolan 's testimony, I must find
the inference the General Counsel invites from the
checkoff lists and Bolan 's testimony , namely, that Respon-
dent 's practice of paying male employees above minimum
rates and granting them wage increases has resulted in a
diminution of employee support of the Umon, to be
unwarranted.
In sum the following is revealed by the record: the
Respondent and the Union have enjoyed an amicable
bargaining relationship over a period of about 20 years; in
the past 5 years, the Respondent has followed a practice of
paying its material handlers, all male employees, above
minimum rates for a good business reason and not for the
purpose of discriminating against its employees on basis of
their sex; the practice was known to and accepted by the
Union ; it was discussed at negotiating meetings yet neither
the Union nor any female employee has ever made a
request to the Respondent that female employees be
transferred to the job of material handler and it does not
appear that the Respondent has had any reason to believe
that its female employees were available to do the work;
about the time Klaczinsky and Grychka received wage
increases Respondent was paying female employee Degen
above the minimum rate ; and, finally , female employee
Sousa occupies a position in Group V which at one time
was held by a male employee.
I am persuaded, and thus find , that the record does not
preponderate in favor of a finding that , by paying material
handlers in excess of the minimum rates and granting long-
time male employees wage increases , the Respondent has
developed and practiced a policy of discrimination against
its employees on account of their sex. Accordingly, I
conclude that the record does not support , and I will
therefore dismiss, the allegations of the complaint that the
Respondent in violation of Section 8(a)(3) and ( 1) of the
Act has discriminated against its employees by maintaining
a policy and practice of granting wage increases and
paying wage rates to male employees upon the considera-
tion of sex.
2. With regard to refusal to bargain and
unilateral change in existing terms and conditions
of employment
The complaint alleges, in substance , that the Respondent
in violation of Section 8(a)(5) and (1) of the Act has
refused to bargain with the Union by insisting to the point
of impasse upon the retention of a provision in the contract
which it had used to grant wage increases on a sexually
discriminatory basis and unilaterally changing an existing
term and condition of employment by procuring an
insurance policy covering the unit employees different
from the one in effect under the 1969 agreement. More
specifically the General Counsel and the Charging Party
contend that the Respondent has used the minimum rates
of pay provision in the 1969 contract to perpetuate sex
discrimination-an illegal act under Federal and state
statutes-and, by obstinacy in its resolve to retain the
provision , has sought to condition an agreement with the
Union upon its acceptance of a nonbargainable subject. I
do not agree.
Section 8(a)(5) of the Act provides that it shall be an
unfair labor practice for an employer "to refuse to bargain
collectively with the representative of his employees l o y e e s .
Section 8(d) of the Act defines collective bargaining as
requiring the parties to a collective -bargaining relationship
to meet at reasonable times and confer in good faith "with
respect to wages, hours, and other terms and conditions of
employment ...."
It is well settled that an employer acts in derogation of
his bargaining obligation under Section 8(d), and hence
violates Section 8(a)(5), when he insists on the inclusion of
a nonmandatory subject as a precondition to an agreement
even though the parties may voluntarily reach a lawful
agreement on the matter . 20 However , as it has been found
that the Respondent did not, at any time material herein,
have a policy and practice of discrimination against its
employees on account of their sex, the matter of minimum
rates of pay was a mandatory topic and could be bargained
upon to impasse.
As set forth above, negotiating sessions were held on
June 10, July 16, and on or about July 26. At the first, the
Company reviewed the Union's contract proposals and
after this the discussion focused on the Union's demand
that the word "minimum" not be included in the new
contract . Graham inquired whether the Company con-
strued the word as giving it the unfettered right to pay
above contract rates and Lewis answered in the affirmative
with an explanation . During the course of the meeting,
Attorney Jensen told Graham that he (Graham) was
confronted with one of two alternatives, to arbitrate or
negotiate . Finally, Graham stated that if this was the
Company's position the meeting was over and he left
taking the local's negotiating committee with him. At the
second session, the parties exchanged economic proposals
to no avail. At some point, the Federal mediator suggested
that the Company reclassify its job positions. The
suggestion was accepted by the Company and not opposed
by the Union. Near the close of the meeting, the Company
is The 1969 agreement did not contain a union-security provision 20 N L R B v. Wooster Division of Borg-Warner, 356 U S. 342.
19 J Reed and B Reed.
JUBILEE MANUFACTURING COMPANY 285
once again declared that the minimum rates of pay
provision must be retained and the Union just as strongly
demanded that it be eliminated. The third and final
bargaining session was held about July 26. At this meeting,
the Company presented a reclassification proposal and
advised that it would adhere to the rates therein but that if
it became necessary to exceed them it would advise the
Union of its action. Although the Company proposed to
alter the phrasing of the disputed provision in an attempt
to get the Union to accept it, the change was one of
semantics not substance as the Company would still retain
the right to pay above the minimum rates at will with
notice to the Union only after the fact. The proposal was,
of course, rejected. The parties were then separated and
sometime later the mediator reported to the Union that the
Company was steadfast in its position and unless the
Union was willing to make a counterproposal the parties
were deadlocked. Graham's only response to all this was a
statement that the next move was not the Union's and the
Union had nothing further to present.
In the view of the Trial Examiner, an impasse was
reached about July 26. Management insisted on inclusion
of the disputed provision and the Union was equally
emphatic that it was unacceptable. However, contrary to
the General Counsel and the Charging Party, I believe the
Union not the Respondent created the impasse. Thus, it
was Graham who walked out of the initial meeting when
told the Company was firm in its determination to keep the
provision and who at the final meeting failed to respond to
the Company's reclassification proposal with a counterpro-
posal of his own but instead declared that the Union had
nothing further to offer.
Graham and Lewis met perchance in September and, on
that occasion, the former requested a meeting not for full-
scale bargaining for an entire new contract, but only to
resolve the issues. Lewis' response was that the matter had
gone too far and he again stated that the Company must
have the right to pay above the minimum rates. Since an
impasse on the minimum rates issue was reached on or
about July 26 and since there is no evidence of any
substantial change in circumstances which would have
revived the Respondent's duty to meet or any indication
that the Union was more amenable to compromise on the
issue, I find that the Respondent was not bound to meet
and bargain with the Union.2i
The Charging Party points in its brief to the Board's
majority holding in Moore of Bedford, Incorporated22 that
the Employer there violated Section 8(a)(5) when it insisted
to the point of impasse that the Union agree to change a
contract provision providing for a grievance arbitration
procedure the effect of which would have granted the
Employer unilateral control over wages paid to incentive
pay employees.23 In finding the 8(a)(5) violation in Moore
21 Cf Transport Company of Texas, 175 NLRB 763.
22 187 NLRB 721.
23 Citing Tex-Tan Welhausen Company, 172 NLRB 851
24 The statement in the notice that there would be no change in coverage
of Bedford, however, the Board's majority stressed, inter
alia, that at no time did the Employer express a desire to
negotiate over the "earnings level." I distinguish the instant
case from Moore of Bedford in that critical respect.
Conversely, the cases are in harmony in that in each there
was an established history of amicable bargaining wherein
the disputed provision had become a recognized part of the
contractual relationship.
In the total circumstances surrounding the dispute with
respect to the minimum rates of pay provision, I find that
Respondent did not violate Section 8(a)(5) and (1) of the
Act by its insistence that the provision be retained in any
new contract with the Union. Accordingly, I shall dismiss
this allegation of the complaint.
Nor do I find an evidentiary support for the allegation
that the Respondent unilaterally changed an existing term
and condition of employment. It is true that the health and
accident insurance policy was changed to the detriment of
the unit employees but the action was taken by Blue Cross
when it switched from Northwestern National to Standard
of America not by the Respondent. Moreover, after the
conversation with Novak, Lewis posted, or caused to be
posted, a notice of the change on the plant bulletin board.
The notice was posted approximately 5 weeks before the
change was to take place and most if not all of the officers
of the local were employed in the plant. It is therefore
reasonable to infer, and I do, that the Union was aware of
the change well in advance of its effective date.24
Accordingly, having found that the Respondent did not
engage in any of the alleged violations, I shall dismiss the
complaint.
CONCLUSIONS OF LAW
1. Jubilee Manufacturing Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Jubilee Manufacturing Company has not engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER
The complaint is dismissed in its entirety.
was contrary to the fact, but it does not appear that it was a deliberate
misrepresentation calculated to mislead employees with respect to their
rights under the Act