Handy Andy, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1977

228 N.L.R.B. 447 (N.L.R.B. 1977)

HANDY ANDY 447
Handy Andy, Inc. and Mason M. New, Petitioner, and
International Brotherhood of Teamsters, Chauf-
feurs, 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, Warehouse-
men and Helpers of America, General Drivers &
Helpers Local Union No. 657, herein called the
Union. There was one challenged ballot, an insuffi-
cient number to affect the results. Thereafter, the
Employer filed a timely objection to the issuance of
certification of the Union as bargaining representa-
tive.
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 Em-
ployer'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 1 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.2
Upon the entire record in this case, including the
exceptions and oral arguments, the General Coun-
sel'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
effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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, truckdriv-
ers, sanitation drivers and helpers, shipping and
receiving clerks, warehouse clerical employees,
garage mechanics, fork lift and pallet jack mainte-
nance employees and custodial employees em-
ployed 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 con-
struction 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 discrimina-
tion 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.
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
I Trumbull Asphalt Company, Inc., Case 25-RC-5719; Bell & Howell 2 The American Federation of Labor and Congress of Industrial
Company, Case 13-CA-13680; and Murcel Manufacturing Corporation, Cases Organizations and the Chamber of Commerce of the United States
10-CA-10122, 10-CA-10152, and IO-RC-9502. submitted briefs and presented oral argument as amen curiae
228 NLRB No. 59
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the United States Court of Appeals for the Fifth
Circuit .3 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 Employ-
er 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 discrimi-
nation prior to issuance of a Board certification of
representative.5 As the majority noted in Bekins,
however, the question of whether a labor organiza-
tion's invidious discrimination constitutes objection-
able 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 consider-
ing allegations that a labor organization practices
invidious discrimination in appropriate unfair labor
practice rather than representation proceedings.
Accordingly, for the reasons set forth hereafter, the
Bekins decision is overruled .6
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 organi-
zation before it may lawfully certify the union as the
exclusive 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 organi-
zation 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
3 Rodriguez, 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, 505 F.2d 69 (C.A. 5, 1974).
4 42 U S C. §2000e to 2000e-17 (Supp . II, 1972), amending 42 U.S.C.
§2000e to 2000e-15 (1964).
5 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 regwired by the Constitution nor
permitted by the provisions of the Act and that such action would undercut
rather than 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 consitutional requirement concerning alleged discnnuna-
tion 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.
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 appro-
priate vehicle for resolving such issues and for
devising the appropriate remedies for unlawful dis-
crimination 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 .recertifica-
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
principle enunciated by the Supreme Court in Shelley
v. Kraemer8 and subsequent cases,9 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
discrimination, thereby running afoul of the due
process clause of the fifth amendment." 10
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 Cauca-
sian race ." The state courts had enforced the cove-
nants and, consequently, had found that petitioner
could not obtain valid title. The Supreme Court held
6 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.
7 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.
8 334 U .S.1(1948).
9 See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961);
Evans v. Newton, 382 U.S. 296 ( 1966); Evans v. Abney, 396 U.S. 435 (1970)
10 211 NLRB at 139.
11 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
fourteen amendment imposes on state action . Boiling v. Sharpe, 347 U S. 497,
499(1954).
HANDY ANDY
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
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.]12
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
Court 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 pri-
vate individuals free to impose such discrimina-
tions 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.]13
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 at v. City of Greenville,14 10
blacks were arrested for trespassing after refusing to
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,15 and thus sufficiently
involved the State in the counter manager's discrimi-
nation to violate the equal protection clause.16 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
449
Reitman v. Mulkey 17 to extend to mere "authoriza-
tion" 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.18 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 intend-
ed to authorize, and does authorize, racial discrimina-
tion in the housing market." 19 Thus, the prohibited
state action in Reitman was authorization by the State
of private discrimination.
Finally, in Moose Lodge No. 107 v. Irvis, 20 a state
liquor control agency, in granting liquor licenses,
promulgated numerous regulations with which licens-
ees 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." 21 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 discrimi-
nating 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
"[h]owever detailed this type of regulation may be in
some particulars, it cannot be said to in any way
foster or encourage racial discrimination." 22 (Empha-
sis 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 regula-
tions governing the operation of Moose Lodge were
so entwined with the racial policies as to trigger the
equal protection clause, because they did not specifi-
cally support the racial discrimination 23 This distinc-
tion, 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
12 334 U.S. at 13. 19 387 U.S. at 381.
13 334US.at19 20 407 U S 163 (1972)
14 373 U.S 244 (1963).
15 373 U.S. at 248.
. ..
21 407 U S. at 177.
16 373 U. S. at 248 22 407 U.S. at 176-177.
17 387 U.S. 369 (1967). 23 407 U.S. at 177.18 The Court "acce ted" the ruling of the California Supreme Court,
which had so held. 387 U.S. at 381.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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]uch 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 "sign(cantly involved
itself with invidious discriminations" [citation
omitted] in order for the discriminatory action to
fall within the ambit of the constitutional prohibi-
tion. [Emphasis supplied.]24
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
involvement has been found in the past where
government "required" private parties to discrimi-
nate, "enforced" private discrimination, "authorized"
private discrimination, or "fostered and encouraged"
discrimination. Thus, the issue is whether a sufficient-
ly close nexus is established between governmental
action and actual discrimination by a private party;
mere involvement with a private party who discrimi-
nates 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 under-
taken by a union which has received such a certifica-
tion.
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 acknowledgment that a
majority of the employees in an appropriate bargain-
ing unit have selected the union as their exclusive
bargaining representative.26 The choice of represen-
tative 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
the employees may select a "good" labor organi-
zation, a "bad" labor organization, or no labor
24 407 U S.at173
25 Burton v . Wilmington Parking Authority, supra, 365 U.S. at 722.
26 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 organiza-
tion" 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
organization, it being presupposed that employees
will intelligently exercise their right to select their
bargaining representative.27
Clearly, certification does not constitute enforce-
ment 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 hiring
restrictions based on membership restrictions wheth-
er 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 on 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
bargaining 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 mem-
bership 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 representation 28 prevents unions from
using their bargaining representative powers in a
discriminatory manner. Thus, while use of Board
processes and the Board's certification may have
helped a union gain the powers 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 implementa-
tion of it can hardly be said to be "significantly
involved" in the union's discrimination, since the
duty of fair representation in its various forms
specifically prohibits a union from practicing unlawful
discrimination under the authority of the Act. There-
fore, 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 govern-
mental action doctrine.
This view is buttressed by the indisputable fact that
the Act predicates a union's bargaining representa-
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.
27 Alto Plastics Manufacturing Corporation, 136 NLRB 850, 851 (1962).
18 See discussion concerning the duty of fair representation, infra
HANDY ANDY
tive 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
approved nor endorsed the racially discriminatory
practices of Moose Lodge.29 [Emphasis supplied.]
Indeed, the courts have found that an exclusive
bargaining representative is subject to the duty of fair
representation 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.L.R.B. v. Mansion
House Center Management Corporation 30 would re-
quire of the Board.31 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
methods Congress has chosen. This view is supported
by the Supreme Court's recent decision in Washing-
ton, Mayor of Washington, D.C. v. Davis,32 in which
the Court held that the standard for determining
whether governmental action constitutes discrimina-
tion proscribed by the Constitution is not the same as
the test to be utilized under Title VII.
A logical consequence of the Bekins constitutional
determination is the conclusion that in their respec-
tive areas of authority the Federal agencies have
overlapping responsibility for remedying any invidi-
ous discrimination by private parties 33 For example,
29 Moose Lodge, supra, 407 U.S. at 175, fn 3.
30 473 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 discrimination
31 In fact , in supporting its test for racial discrimination in Mansion
House, the court cited almost exclusively Title VII cases.
32 426 U S 229 (1976).
33 The Bekins conclusion further implies that Congress does not have the
power to vest j unsdiction over claims of racial or other invidious discrimina-
tion exclusively in a single agency, the Equal Employment Opportunity
451
one might argue that the Interstate Commerce
Commission may not constitutionally approve a
route of a common carrier which engages in discrimi-
natory hiring practices or that the Securities and
Exchange Commission is prohibited from approving
a prospectus of a corporation which engages in such
practices . This argument was recently rejected by the
Supreme Court in National Association for the Ad-
vancement of Colored People v. Federal Power Com-
mission, 34 in which the Court held that the FPC does
not have the authority to promulgate rules prohibit-
ing 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 man-
dated 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 Acts35 authorized "if indeed it did 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 reason-
able prices. While there are undoubtedly
other subsidiary 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 Acts 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.]36
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 Employ-
ment Opportunity Commission. To the extent that
Commission . This conclusion is clearly wholly untenable . See 42 U. Chi L
Rev 1, 10(1974).
34 425 U.S. 662 (1976).
35 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. 1(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."
38 425 U.S. at 669-670
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the judiciary orders administrative responsibility
to be diffused , congressional intent is frustrated,
regulated industries are subjected to the com-
mands of different voices in the bureaucracy, and
the agonizingly long administrative process grinds
even more slowly . To suggest, for example, that
the FPC could deny a license on account of 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.]37
Furthermore, as Professor Meltzer of the University
of Chicago has noted,38 "An administrative agency
generally does not have jurisdiction to invalidate
important elements of its enabling legislation." In
Johnson, Administrator of Veterans' Affairs v. Robi-
son,39 Mr. Justice Brennan , speaking for the majority
of the Court , quoted with approval Mr. Justice
Harlan's concurring opinion in Oestereich v. Selective
Service System Local Board No . 11, Cheyenne, Wyom-
ing,40 for the proposition that "[a]djudication of the
constitutionality of congressional enactments has
generally been thought beyond the jurisdiction of
administrative agencies." 41 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," 42 the majority members
in effect arrogated to this Board the power to
determine the constitutionality of mandatory lan-
guage 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. 43 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 accommodation between
the two ." Central Hardware Co. v. N. L. R. B., 407
37 425 U.S. at 673-674
38 "The National Labor Relations Act and Racial Discrimination. The
More Remedies, the Better?" 42 U. Chi. L. Rev. 1, 20, fn 93 (1974).
39 415 U S. 361 (1974).
40 393 U.S. 233, 242 (1968)
41 415 U S. at368.
42 211 NLRB at 139
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 conspic-
uous 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)(1) directed that
"[w ]henever a petition has been filed, in accor-
dance 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 affect-
ing commerce exists shall provide for an appropri-
ate 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
requirement. Absent unfairness in the election
itself, the section commands the Board to issue a
certification of representative to the winning labor
organization. [Footnotes omitted.145
We conclude that the Bekins doctrine will signifi-
cantly 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 available to them.
Indeed, even a union which practices some unlaw-
ful 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
may still have to be denied.47 Yet, the minority
workers might not be helped by keeping the union
out, since they will then be at the mercy of their
43 424 U.S 507 (1976).
44 424 U.S at 521.
45 211 NLRB at 147.
46 See Bekins, 211 NLRB at 148 , dissenting opinion.
47 In 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.
HANDY ANDY
employer who has no duty of fair representation to
fulfill, who may act to the detriment of all 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 provid-
ed under the Board's Bekins doctrine with an
incentive to inject charges of union racial discrimina-
tion 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 antidiscrimi-
nation policy. Denying certification and bargaining
orders to discriminating unions may seem to be an
effective sanction as the status of bargaining repre-
sentative 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 from the Board in maintain-
ing 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(b)(7)(c)
to picketing by unions whose representational eligi-
bility is being litigated or has been denied by the
Board. To prevent a union found ineligible for
certification from engaging in recognitional picketing
and thereby to secure the 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 picket-
ing, 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.48
48 Bekins, 211 NLRB at 147, fn. 43 , dissenting opinion.
49 Even in cases where the Board has held, prior to an election, that a
union was disqualified from representing employees, such finding has been
453
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 employ-
ees 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 in other bargaining units with other em-
ployers, 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 fmdings and remedies apply only to the
particular parties before us. .
The Bekins holding further would lead to anoma-
lous 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 dis-
crimination and certification of the union would
perpetuate this condition. In these circumstances it
would be ludicrous 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 repre-
sented these employees and, presumably, these em-
ployees 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
looking only at the conduct of the parties to our
proceedings vis-a-vis each other.49 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.
predicated on the labor organization 's conflict of interest with employees in
the spec fc unit sought Harlem River Consumers Cooperative, Inc, 191 NLRB
314 (1971); Bambury Fashions, Inc, 179 NLRB 447 (1969)
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Questions concerning representation must be
expeditiously resolved in order to achieve the statuto-
ry 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 Adminis-
trative Procedure Act.50 For the same reason , repre-
sentation 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 procedur-
al 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
collective-bargaining agreements which patently dis-
criminate between black and white employees from
the challenge of otherwise appropriate election peti-
tions.51 In reaching this conclusion, the Board
specifically recognized that to hold otherwise would
be inconsistent with the Supreme Court's condemna-
tion of governmental sanctioning of racially separate
groupings.52 Similarly, in order to insure fairness in
Board-conducted elections, the Board has held that
an employer's preelection propaganda which consti-
tuted "a deliberate, sustained appeal to racial preju-
dice . . . created conditions which made impossible a
reasoned choice of a bargaining representative."53
The decision emphasized that "[t]he Board does not
intend to tolerate as `electoral propaganda' appeals or
arguments which can have no purpose except to
inflame the racial feelings of voters in the election." 54
50 American Federation of Labor, et a! v N.LR.B., 308 U 5.401, 409-411
(1940)
5i Pioneer Bus Company, Inc, 140 NLRB 54 (1962).
52 Brown, et a!. v . Board of Education of Topeka, et a!, 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).
53 Sewell Manufacturing Company, 138 NLRB 66,70 (1962)
54 138 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(ax 1) of the Act.
Also cf. N LR B. v Staub Cleaners, Inc, 357 F.2d I(C.A. 2, 1966) remanding
148 NLRB 278 (1964), Supplemental Decision and Order 171 NLRB 332
(1968), enfd . 418 F.2d 1086 (C.A 2,1%9)
55 In thesd cases, however, the Board was not required to resolve factual
disputes . Rather, each instance involved evaluation ofuncontroverted facts
as to possible impact on the election process
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.55 However, because of the essentially nonad-
versary 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 spec-
trum of due process, including particularly the right
of judicial review.56
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 proceed-
ings are at all stages subject to the Administrative
Procedure Act and to review by Federal courts of
appeals.57 These procedures also accord with the
basic procedures required under Title VII, i.e., 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
56 We 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.
57 Our 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 'de-
pnv[ation ] . . . 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
HANDY ANDY
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.58
We conclude that our statutory function of elimi-
nating invidious discrimination by labor organiza-
tions 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 interferes with
Section 7 rights. We have done so with respect to
unions by policing their conduct vis-a-vis the employ-
ees 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.: 59
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 repre-
sentatives, 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.]60
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.; 61 Tunstall v. Brotherhood of Locomotive
Firemen & Enginemen; 62 and Wallace Corporation v.
N.L.R.B.63 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
56 See Meltzer, supra at p 24.
59 140 NLRB 181 (1962).
60 140 NLRB at 185.
61 323 U S 192 (1944).
62 323 U.S. 210 (1944).
63 323 U.S. 248 (1944).
64 323 U S. at 204 Our dissenting colleague states that "[i In Steele v.
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 discrimination 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)
455
"cannot rightly refuse to perform the duty, which is
inseparable from the power of representation con-
ferred upon it, to represent the entire membership of
the craft." 64 In Wallace, which did not involve race
discrimination, the Court held that the same duty of
fair representation was required of bargaining repre-
sentatives selected under the National Labor Rela-
tions 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 65
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) 66
In Galveston Maritime Association, Inc.,67 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
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," 68 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,69 the union had a
policy prior to September 1963 of refusing to accept
65 Independent Metal Workers Union, Local No. 1(Hughes Tool Company),
147 NLRB 1573 (1964).
66 Local Union No. 12, United Rubber, Cork , Linoleum & Plastic Workers
of America AFL-CIO (The Business League of Gadsden), 150 NLRB 312
(1964), enfd 368 F.2d 12 (C.A. 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.
87 Local 1367, International Longshoremen 's Association, AFL-CIO, et al.
(Galveston Maritime Association, Inc.), 148 NLRB 897 (1964), Member
Fanning concurring.
66 148 NLRB at 899.
69 Houston Maritime Association , Inc, and Its Member Companies, 168
NLRB 615 (1967).
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 applications regardless of the applicant's race.
In addition to finding that the union's new policy
violated Section 8(b)(1)(A) and Section 8(b)(2) of the
Act as an attempt to perpetuate past discrimination,
the Board found that the employers who had partici-
pated in the pattern of unlawful conduct had thereby
violated Section 8(a)(1) and (3).
While these cases clearly illustrate that we provide a
remedy for breach of the duty of fair representation,
thereby protecting employees from invidious discrim-
ination 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.70 Additionally, the Board
has, in appropriate cases, revoked the certification of
unions which engage in unlawful invidious discrimi-
nation.71
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 appro-
priate context, and we shall continue to do so.72
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
9(c) 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 af-
forded in unfair labor practice proceedings which are
not available in representation proceedings, the
somewhat different purposes served by Section 8 and
70 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
(1%5), wherein the Board held that a union violated Sec. 8 (bX2) and
8(bxlXA) of the Act by engaging in a walkout in order to protest an
employer 's attempt to remedy its past discrimination.
71 Independent Metal Workers Union, Local No I (Hughes Tool Company),
supra
72 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 ofAmerica (Great Western
Unrfreight System), 209 NLRB 446 ( 1974). But, as he carefully explained in
his concurring opinion in that decision , that does not mean that he-any
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.
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 Help-
ers 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 collec-
tive bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment:
All warehouse employees, dock workers, truckdriv-
ers, sanitation drivers and helpers, shipping and
receiving clerks, warehouse clerical employees,
garage mechanics, fork lift and pallet jack mainte-
nance employees and custodial employees em-
ployed 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 con-
struction 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. I 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 I
agree with my colleagues that such claims "should
more than the Board majority-sanctions or condones union misconduct
towards employees. He has found violations of Sec. 8(b)(IXA) in the
maintenance of segregated locals , Local No. 106, Glass Bottle Blowers
Association, AFL-CIO (Owens-Illinois, Inc.,) 210 NLRB 943 (1974), enfd.
520 F.2d 693 (C.A. 6, 1975); and of Sec . 8(b)(1)(A) and 8(bX2) in a union's
coercive advocation and enforcement of racially discriminatory hiring
policies, International 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
to be violations of Sec . 8(bXIXA), Truck Drivers, Oil Drivers and Filling
Station and Platform Workers Local No. 705, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen 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.),
170NLRB 1234(1968).
HANDY ANDY
be" considered in an adversary proceeding, I think
that they must be considered in such a proceeding.
Assuming, as I do, that a proper accommodation
between this Board and other governmental agencies
(e.g., EEOC) requires us to confine our examination
to actual discrimination in the particular unit under
consideration, fair representation claims are prema-
ture 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 at 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, I would add yet another:
instances in which it can be established through
reference to a petitioner's constitution, bylaws, or
other written statement of policy, that the petition-
er-not an affiliated organization or sister local-
restricts access to membership on the basis of race,
alienage, national origin, or sex. Should such discrim-
ination be found, I would disqualify the petitioner
from access to our election machinery until it can
establish that the offensive practices have been
eliminated.
The proviso to Section 8(b)(1)(A), of course,
prohibits litigation of membership discrimination
claims in an unfair labor practice proceeding. I do
not think, however, that the Board should ignore such
blatant discrimination. Irrespective of whether we are
constitutionally obligated to do so, I would, as a
matter of discretion, deny a union which discrimi-
nates 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." 73
In the instant case, the Employer alleged discrimi-
nation 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
73 Since the inquiry would determine the union 's qualification to use our
election procedures , appropriate membership discrimination claims would
457
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 amend-
ment precludes its certification as the exclusive
representative of unit employees of a labor organiza-
tion which engages in invidious discrimination and
that a precertification inquiry as to a labor organiza-
tion's representation of employees on a nondiscrimi-
natory 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
certification for an inquiry into the labor organiza-
tion'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 constituted 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 amend-
ment does not preclude the Board from certifying as
the statutory bargaining agent created by the Nation-
al Labor Relations Act a union which engages in
discriminatory representation, that the statute re-
quires 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 discrimi-
natory representation "are best considered in the
context of appropriate unfair labor practice proceed-
ings." Accordingly, it overrules the Bekins decision
and forecloses any precertification inquiry into a
union's discriminatory representation in the bargain-
ing unit in issue . The Board majority in Bekins, of
which I was a member, found that such certification
"would appear to be sanctioning, and indeed further-
ing, 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
have to be entertained at the outset of the representation procedure, prior to
the direction of an election.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion. I therefore vigorously disagree with
today's contrary holding of my colleagues.74
In my colleagues' view the language of Section
9(c)(1) requires the Board to certify a union even
though its governing instruments (constitution, char-
ter, 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.75 As a result of the Board's
certification, the employer is required to bargain with
the Union as the exclusive representative of all
employees in the unit, minority employees who voted
against the union can have no other representation,
the Union 's status as exclusive bargaining representa-
tive 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 organiza-
tion 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 discrimina-
tion when that representation is conducted in accor-
dance 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 pro-
ceedings may be instituted which will bring 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 decisions 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 discrimi-
nation 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 discrimi-
nation in any form. See, e .g., Bolling v . Sharpe, 347
U.S. 498 (1954); Shelley v. Kraemer, 334 U.S. I
74 In earlier decisions the Board has held , on constitutional grounds, that
discriminatory practices by a union required the denial of representation
privileges Independent Metal Workers Union, Local No. I (Hughes Tool
Company), 147 NLRB 1573 (1964); Pioneer Bus Company, Inc, 140 NLRB 54
(1962).
45 1 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 discriminato-
ry practices . In the present case, the objection to certification included the
(1948); Burton v. Wilmington Parking Authority, 365
U.S. 715 ( 1961). Since the Board's certification grants
a discriminating union the right of exclusive represen-
tation, together with various concomitant advantag-
es, 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 (C.A. 8, 1973), "Federal complicity through
recognition of a discriminating union serves not only
to condone the discrimination, but in effect legiti-
mizes and perpetuates such invidious practices. Cer-
tainly 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 discriminat-
ing union, my colleagues assert that the view of the
majority in Bekins that certification of a discriminat-
ing union violates constitutional restrictions miscon-
strued 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
constitutional bounds, my colleagues state that such
an involvement is found in circumstances, among
others, where the Government authorized private
discrimination or fostered and encouraged private
discrimination. They conclude, however, that certifi-
cation of a discriminating union does not sufficiently
involve the Board in the union's invidiously discrimi-
natory practices to render its action unconstitutional
because "a certification is neither more nor less than
an acknowledgment that a majority of the employ-
ees in an appropriate bargaining unit have selected
the union as their exclusive bargaining representa-
tive" 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 under-
statement of the significant effects of certification. By
certification the union becomes the statutory bargain-
ing agent with statutory rights. Improper interference
with the selection of the bargaining representative is
the violation of "public, not private, rights." Virginia
Electric & Power Co. v. N.L.R.B., 319 U.S. 533, 543
claim that the union excluded "persons from membership on the basis of
race, ahenage 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 System, Inc., supra, Resendis v . Lee Way Motor
Freight, Inc, supra.
HANDY ANDY
(1943). The usual form of certification of representa-
tive 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 as representative 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 discriminating union as
representative of the excluded or segregated blacks or
women. Minorities do not have a protected right,
separate from the certified representative, to engage
in concerted activities to protest 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 representa-
tion function in which the union practices discrimina-
tion and is patently direct participation and assis-
tance by a Government agency, contrary to constitu-
tional strictures, in the union's discriminatory repre-
sentation. 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 bargaining agent
upon a union which engages in invidious discrimina-
tion clearly fosters and supports the union's discrimi-
natory practices and this constitutes the Board's
involvement in them under the standards which my
colleagues acknowledge but contend are not applica-
ble 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
involvement in discriminatory action which it was the
design of the Fourteenth Amendment to condemn."
76 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 discriminate against members of the bargaining
unit
. . constitutional questions anse . For the representative is clothed
459
The Board's decisions holding breach of the duty of
fair representation to be an unfair labor practice, with
which I of course fully agree, are no substitute for the
disqualification of a discriminating union in a repre-
sentation proceeding. The fifth amendment does not
permit a Government agency to provide the instru-
ment 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 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 exclu-
sion of minorities from the union or from employ-
ment 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 em-
ployer confronted with a certification may find it
expedient to enter into a collective-bargaining agree-
ment with a union which excludes blacks or women
from employment. 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 perpetuation 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 estab-
lishes 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 com-
pletely devoid of merit.76 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
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
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act nowhere expressly
imposes on the statutory bargaining agent a duty of
fair representation. This doctrine, first enunciated by
the Board in Miranda Fuel Company, Inc., 140 NLRB
181 (1962), as my colleagues acknowledge,77 was
derived from the Supreme Court's decisions 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 repre-
sentative must be implied for constitutional reasons.
Thus, in attacking the problem of invidious discrimi-
nation by reading into the statute a duty of fair
representation, my colleagues rely no less on constitu-
tional requirements than they would if they held
nondiscrimination 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
Independent Metal Workers Union, Local No. 1
(Hughes Tool Company), 147 NLRB 1573 (1964), the
Board relied on constitutional doctrine for its holding
that racial segregation in membership by a statutory
bargaining representative 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 adjudicat-
ing 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 employ-
ees' 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 represen-
tation might be preferred to no representation. No
authority is cited for this bizarre suggestion and I am
certain none can be found.
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 disqual-
ifying 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 em-
ployers will use objections to certification based on
discrimination as a tool for delaying or avoiding
collective bargaining, my colleagues cite as illustra-
tions cases in which the evidence of a labor organiza-
tion's discriminatory conduct fell far short of estab-
lishing that it would engage in discrimination in the
unit for which certification was currently being
sought. If there is a propensity of 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. I agree with my colleagues that disqualify-
ing evidence of discrimination must relate to the
union's future course 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 certifica-
tion. But certainly where a union's governing instru-
ments require it to exclude minorities from member-
ship 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 objec-
77 Member Fanning has not yet accepted Miranda.
HANDY ANDY 461
tions to certification based on alleged discrimination,
and that no undue delays have occurred. See, e.g.,
Grants Furniture Plaza, Inc. of West Palm Beach, Fla.,
213 NLRB 410 (1974).78
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 evi-
dence, cross-examine witnesses, submit briefs, and, if
desired, to participate in oral argument. After the
Hearing Officer files his report and recommenda-
tions, 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 Pressmen'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 Newspa-
per 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 discrimina-
tion in violation of the due process clause of the fifth
amendment. Policy arguments are, accordingly, irrel-
evant 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.
78 In Grants, the Board adopted the Regional Director 's recommendation membership without evidence of who controlled hiring practices and
that the employer 's objection to certification on the ground that the union evidence that a complaint had been filed by the Department of Justice
was guilty of discriminatory practices be overruled without a hearing . The alleging discrimination were not sufficient to warrant a hearing and certified
Board held that statistical evidence of the composition of the union 's the union.