The Emporium

National Labor Relations Board - Board Decisions

Jul 22, 1971

192 N.L.R.B. 173 (N.L.R.B. 1971)

THE EMPORIUM 173
The -Emporium and Western Addition , Community
Organization. Case-20-CA-5304
July 22,, 1971
DECISION AND ORDER
On October; 20, 4,969i Trial Examiner William E.
Spencer issued his Decision in the above-entitled
proceeding,, finding that Respondent had not engaged
in the unfair- labor practices alleged in `the complaint
and recommending that the complaint be dismissed in
,its entirety. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Trial Examin-
er's, Decision together with supporting briefs; and
Respondent filed cross-exceptions to the Trial Exam-
iner's Decision and in opposition to the General
Counsel's exceptions together with a supporting
brief.'
- On' December 14, 1970, the National Labor Rela-
tions Board having determined that the instant case
raised issues of substantial importance in the adminis-
tration of the National Labor Relations Act, as
amended, notified the parties that oral argument on
the case would' be heard by the Board oil January 4,
1971. All parties participated in the oral argument
which was substantially held on-the aforesaid date.
The Board- has-'reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby ' affirmed. The'Board has considered the Trial
Examiner's Decision, the exceptions and briefs, the
oral`-argument, and the entire record in the case, ad
hereby,adopts the findings, conclusions?' and recom-
mendations of the Trial Examiner.
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 Trial Examiner and hereby orders that
1 Amici curiae briefs were filed by the Department Store Employees
Union Local 1100, Retail Clerks International Association , AFL-CIO, the
National , Association for the Advancement of Colored People, and the
Equal Employment Opportunity. Commission. Respondent also filed a
brief in reply to the amid briefs.,
2 Unlike our dissenting colleague, Member Jenkins, we conclude that
the,-record -before us neither requires nor-allows findings as to two matters
which, were not alleged or litigated but which, nevertheless, are assumed as
facts and supply the foundation of his dissent, specifically : (1) that
Respondent was engaged in a pattern or practice of racial discrimination,
and (2) that the Union's efforts to remedy that supposed discrimination
were so' limited that the Union breached its duty of fair representation and
should forfeit - its status as the exclusive representative of employees in the
bargaining unit. Furthermore, since those issues were not litigated, any
factual findings with respect to them could not properly be-made upon this
record. Thus the -sole issue presented for decision on this record is,whether
the, conduct of the discharged employees was unprotected because in
derogation of the duly designated exclusive bargaining representative. For
192 NLRB No. 19
the complaint be, and it hereby is,, dismissed in - its
entirety.
MEMBER JENKINS, dissenting: -
Respondent, The Emporium, operates a department
store in the San Francisco area. has a ,collective-
bargaining agreement, with, the Union, containing a
clause prohibiting racial discrimination. ,.Respondent
discharged two Black employees for-orderly picketing
and leafletting of Respondent's store in protest of
alleged' racial discrimination `respecting, promotions
and other terms and conditions of employment.
Over-6 months before the picketing and leafletting
began, the Union had -alleged The Emporium 'had
violated the nondiscrimination-clause, and had sought
to pursue individual cases -of alleged discrimination
through the -grievance and arbitration procedure
established by the collective-bargaining agreement.
Some employees, including those dischar'ged,-consid-
ered that the alleged' discrimination problem affected
all black, brown, yellow, and red employees. The
objected to the Union's limiting grievances to-iridivid-
ual cases as'being too slow, narrow, and ineffective as
a remedy, and asked the Union to seek grievance
adjustment; and arbitration if necessary, of the broad
question of all phases of discriminatory treatment; of
all; Black and other minority employees. The Union
declined,, and the picketing and leaflettiiig resulted.
The question thus- presented is whether concerted
activity by employees protesting; the existence of all
forms' of alleged' racial discr`imination' . loses its
protection under the Act because the Union repre=
senting the employees has takena position in support
of eliminating some,' but not all, phases-of the alleged
discrimination.3
The Trial Examiner found that the picketing and
leafletting lost its protection,' primarily for- two
reasons: (1) The Union is the exclusive-representative
of the employees under the Act; the Act entitles: the
Employer to -deal only with -the Union-rather-`than
bargain on two fronts; thus" the picketing and
leafletting undermined the Union's` exclusive`,repre-
sentation of the employees; and (2) the Union had
the reasons stated by the Trial Examiner, we agree that the actions of the
discharged employees in abandoning the contractual grievance procedure
and seeking to initiate 'direct negotiations with Respondent by'picketing
and-boycott activities were not protected by the Act
3 It will be noted, contrary to the statement, in fn. 2 of -the majority
opinion, that I have set forth the facts as involving "alleged"
discrimination , and have refrained from any indication of the merit (or
lack of it) in the protesting employees' assetions that Respondent engaged
in racial discrimination. If the employees were of the opinion that-such
discrimination existed, and protested , this suffices (in the absence of
additional factors such ,as those subsequently considered in the text) to
make their activities concerted and concerned with terms and conditions of
their employment , and thus brings such activities, within the protection, of
Section 7. It is on this principle, and on these facts, that - my:subsequent
analysis and discussion is based-as I had thought was clear . While it
would make no difference in my, conclusions whether the Union agreed,or
disagreed with the protesters , I note further that the Union also was of the
opinion that Respondent practiced racial discrimination.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made `substantial- and good-faith efforts to achieve an
orderly solution to the problem within the collective-
bargaining processes.4
Neither, ofthese reasons withstands scrutiny.
The, union'sri ht to-be the exclusive representative
of the' empld' ees " originates in, the principle' of
collective';barg' fining established 'by the Act.' This
.principle requires that' the"' representative' of , the
employees present a ;single set of demands. or goals
covering :,ail' employees,.andthat -whatever bargain is
struck, with the . representative by the employer be
applicable_to all employees, so that the employer need
bargain neither with. splinter groups of employees nor
,with individual employees, and may not. undermine
tkie, ,union by. do ing_ so. This ix,turn. implies that the
union must have the power to balance, and adjust the
legitimate competing cfaims ,