Local 12, United Rubber, Cork, Linoleum, Etc.

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any question con- cerning this notice or compliance with its provisions. Local Union No.' 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO and The Business League of Gadsden [David Buckner, et al.]. Case No. 10-CB-1360. De- cember 16, 1964 DECISION AND ORDER On March 18, 1964, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in his attached Decision. Thereafter, the General Counsel and the Charging Party filed exceptions and briefs, and the Respondent also filed a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record, including the Trial Examiner's Decision, the exceptions, and briefs, and adopts the findings and conclusions of the Trial Examiner only to the extent consistent herewith.1 The principal facts are detailed in the Trial Examiner's Decision. Briefly, since 1943 the Respondent Union has been the bargaining representative of the employees of Goodyear Tire and Rubber Com- pany at the latter's plant at East Gadsden, Alabama. The collective labor agreement which was in effect at all material times, and, insofar as appears, all earlier agreements, did not contain provisions dis- criminating racially against Negroes in the bargaining unit. In practice, however, the Respondent and the Company construed the contracts as permitting racial job discrimination and racial seniority rosters, so that, to quote the Trial Examiner, "Certain. jobs were allocated to white employees and other jobs to Negro employees" and "as to promotion, transfers, layoffs, and recalls Negro employees with greater plant seniority had no rights over white employees with less seniority, and vice versa." In addition, as the Trial Examiner found, racially segregated dining and toilet facilities are maintained 1 The requests of the Respondent and the Charging Party for oral argument are hereby denied, as the record adequately presents the issues and the positions of the parties. 150 NLRB No. 18. LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC . 313 in the plant, although there has been no contractual provision with respect to the subjects, and the evidence "indicated" that use of the plant's golf course is limited to white employees. David Buckner is one of eight Negro complainants in this case. During or before-October 1961, Buckner bid on a job that was then posted, but his bid was rejected by management because the job was a "white job." Buckner was laid off. He protested to both the Company and the Respondent that a white employee of less seniority was being retained. Other complainants also had been laid off. Thereafter, as detailed in-,the Trial Examiner's Decision, Buckner and the other complainants filed grievances with the Respondent by which they undertook to obtain (1) elimination of racially discrimi- natory practices by the Respondent and the Company, and (2) back- pay for the periods of their layoffs. The Respondent refused to process the grievances. The Company was then performing services under a Government contract, and it had covenanted with the Government not to dis- criminate racially? One or more of the complainants requested aid of the President's Committee on Equal Employment Opportunity,3 and that Committee, acting through an ordnance division of the armed services, discussed the existing practices with the Company and the Respondent. The initial response of the Company and the Respondent was to defend their racially discriminatory conduct as valid under the terms of their collective labor agreement. Subse- quently; however, following continued efforts by the President's Com- mittee, during- the latter part of March 1962 the Company and the Respondent, to quote the Trial Examiner, entered into "a verbal agreement" to cease interpreting their contract as authorizing racial discrimination in jobs and seniority. In addition, the Company, in a letter of March 21, •1962, to the office of general counsel, chief of ordnance, said inter alia that "the plant will not engage in" racial discrimination in "job opportunity, transfer, promotion, layoff or compensation," that all complainants had been rehired, and that racial seniority rosters had been discontinued. As already noted, the complainants had filed grievances with the Respondent. All grievances were rejected at each stage of the Re- spondent's internal procedure. The complainants took appeals to George Burdon, the president of the Respondent's parent Interna- tional Union. On April 24, 1962, Burdon rendered decisions in favor of the- complainants, holding that (1) the question whether the lay- 2 See Executive Order 10925, issued on March 6, 1961; F.R. Doe. 61-2093. ' On July 16, 1962, E. K. Bowers, the Respondent's president, said to two of the com- plainants , as found by the Trial Examiner , that "they had no complaint and as far as he was concerned they could 'go back to the government right where [ they ] started at.' " 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offs had violated the contract was a matter for contractual interpre- tation which "should be made by the impartial umpire"; (2) the question whether the complainants were entitled to compensation for time improperly lost from work also raised a problem of interpreta- tion and application of the contract; (3) the racial limitations upon recall and transfer rights might have been cured by actions of the Company and the Respondent, but if this subject had not been settled to the satisfaction of the complainants, the grievances relating thereto also should be processed; and (4) the matter of plant privileges "may be a justifiable grievance . . . and the decision rests with mutual agreement, in the grievance procedure, or a determination by the impartial umpire." Notwithstanding Burdon's rulings, the Re- spondent continued its refusal to process the grievances. On Octo- ber 22, 1962, the initial charge in this case was filed. The Trial Examiner was of the opinion that because the oral agree- ment between the Company and the Respondent was reached, and the Company's letter of March 21 to the chief of ordnance was writ- ten, more than 6 months before the filing of the initial charge, and because "so far as appears no employee, within the [Section 10(b) limitation] period was granted or denied transfer, promotion, or consideration for participation in a training program on the basis of race or color," it followed that the grievances relating to transfers, promotions, and participation in a training program had been cor- rected, and, therefore, that there was no basis for an unfair labor practice finding within the 10(b) period insofar as those grievances were concerned. * The General Counsel and the Charging Party con- tend, however, that the Trial Examiner was in error and that the Respondent was under a continuing obligation to process all griev- ances of the complainants. In view of the affirmative action which we shall order in this case, we believe that it is unnecessary that we decide the question whether the Respondent was under such a con- tinuing obligation. We turn to a consideration of the remaining exceptions. These relate to the Respondent's refusal, within the 10(b) period, to process grievances seeking (1) backpay for layoffs and (2) desegregation of plant facilities. "[D]iscrimination in representation because of race is prohibited by the" Act (Conley v. Gibson, 355 U.S. 41, 46), and we held in Independent Metal Workers Union, Local No. 1 (Hughes Tool Co.), 147 NLRB 1573, that a statutory bargaining representative violates Section 8(b) (1) (A), (2), and (3) when it refuses, on racial grounds, to process the grievance of a member of the bargaining unit. See also Local 1367, International Longshoremen's Association, AFL- CIO (Galveston Maritime Association), 148 NLRB 897, in which we LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 315 analyzed a statutory representative's duty to bargain collectively as including the duty to represent employees fairly and without invidi- ous discrimination. The right of employees to be represented fairly by their statutory representative is analogous to their right to require their employer to bargain collectively, and their representative can- not bargain for the denial of equal employment and promotion op- portunities to a part of the unit upon grounds of race. Bester Wil- liam Steele v. Louisville & Nashville Railroad Co., etc., 323 U.S. 192, 207 (1944) ; Graham et al. v. Brotherhood of Locomotive Firemen and Enginemen, 388 U.S. 232, 238-239 (1949). Moreover, the duty of fair representation may be breached not only by action, but by inaction as well, such as the refusal to process a grievance. "[D]is- crimination in refusing to represent" an employee has been held to constitute such a breach. Conley v. Gibson, 355 U.S. at 47. "So long as a labor union assumes to act as the statutory representative of a [unit], it cannot rightly refuse to perform the duty, which is in- separable from the power of representation conferred upon it, to represent the entire membership of the [unit]." Steele, 323 U.S. at 204. The duty of fair representation which the Act imposes upon a statutory representative "stands on no different footing" than the duty to bargain collectively which the Act imposes upon an employer. Steele, 323 U.S. at 207. In the absence of legislative history to estab- lish that the Act contemplates resort to different forums when the analogous duties are breached, i.e., judicial remedies against a statu- tory representative and administrative remedies against an employer, the effective administration of the Act requires that administrative remedies be available in the instance of either breach. Cf. Steele, 323 U.S. at 204-207. The grievances concerning backpay. Certain grievances are founded in the separate seniority rosters and in the claim of some of the complainants, who have been reinstated, that they are entitled to backpay from the Company for portions of the periods of their layoffs that white employees of less seniority were at work. The Company, in its letter of March 21, 1962, mentioned above, declined to give backpay, relying upon the past invalid interpretation of the contracts. On the other hand, Burdon, the International Union's president, in considering the grievances on appeal, ruled that the backpay issue involved an interpretation of the then current contract which should be submitted to arbitration, and, therefore, that the Respondent should process the grievances. The Trial Examiner, after noting these facts, held that the Respondent gave consideration to the grievances at all stages of its internal procedure and that: The claim for compensation for prior layoffs was regarded [by the Respondent] as unmeritorious because of lapse of time 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the past [invalid] practice of applying seniority on racial lines; after that practice was abandoned and a nondiscrimina- tory system was adopted, with the [Respondent's] agreement, its refusal, thereafter to process this- claim and in effect to make the change [to a valid practice] retroactive does not appear to have been prompted by 'considerations that are unfair, irrelevant, or invidious. We disagree. The Respondent has represented the employees in the unit since 1943 and concededly followed a policy of applying seniority on racial lines and participating in racially discriminatory employment practices from 1943 to March 1962. Since 1944, when the Steele case, supra, was' decided, it has been the law that a statu- tory bargaining representative owes to the employees the duty of fair representation of all for" whom it bargains. Nevertheless, for ap- proximately two decades, the Respondent breached that duty. The Respondent now purports to be complying with its duty by virtue of its 1962 oral agreement with the Company. The latter, by virtue of its letter of March 21, 1962, to the chief of ordnance, appears to be attempting to comply with its contractual obligations to the Gov- ernment. The Company has an additional duty under the Act, which it apparently overlooked, 'not 'to enter into or accept the benefits of discriminatory agreements with the Respondent .4 It is a reasonable inference, which we draw, that any fair employment practices in which the Respondent and the Company are engaged today are 'due to effective actions by the President's Committee. (As recited in the discussion of the next issue, the Respondent still insists upon some racial discrimination in the plant.) Through the years since Steele and until the intervention of the President's Committee, the con- tracts between the Respondent and the Company provided, in effect, for nondiscriminatory plantwide seniority, but the Respondent and the Company interpreted the contracts to permit racial job discrimi- nation and racial seniority rosters. "A contract may be fair and im- partial on its face yet administered in such a way, with the active or tacit consent of the union, as to be flagrantly discriminatory against some members of the bargaining unit." Conley v. Gibson, supra. When the Negro employees, in their efforts to utilize the grievance procedure of the 1962 contract to obtain backpay for the periods of layoffs, insisted upon a fair and valid interpretation of • The Company's additional duty flows from the Respondent's duty of fair representation See R. Richardson, at al. v. Texas and New Orleans Railroad Co., 242 F. 2d 230, 236 (C.A. 5), where the court said: N It takes two parties to reach an agreement , and both have a legal obligation not to make or enforce an agreement or discriminatory employment practice which they either know, or should know, is unlawful. Unless financial responsibility for a joint breach of such duty is required from both sides of the bargaining table, the statutory policy implied under Steele will be impracticable of enforcement. For the foregoing reasons, we' think the Brotherhood's obligation under the statute does not exist in vacuo, unsupported by any commensurate duty on the part of the carrier. LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 317 the contract, the Respondent refused to process the grievances, rely- ing upon the' racially invalid interpretation which had been placed upon that and earlier contracts. The Respondent was adamant, notwithstanding the appellate decision of the International Union's president, Burrdon, that the grievances should be processed through arbitration if necessary. Obviously, an arbitrator would not have been bound by the racially invalid interpretation and might have awarded backpay. We hold that the Respondent's statutory duty was to process the grievances through arbitration, and that the Re- spondent demonstrated manifest bad faith and invidious motivation in refusing because of the past invalid interpretations of its collective labor agreements. Upon the basis of the Hughes Tool and Galveston Maritime cases, supra, and for' the additional reasons recited herein, we find violations of Section 8(b) (1) (A), 8(b) (2), and 8(b) (3) in Respondent's refusal within the 10(b) period to process the griev- ances concerning backpay.5' We are not to be understood as holding that the Respondent or any labor organization must process to arbitration any grievance other than the'precise ones discussed herein., We hold only that where the record demonstrates that a grievance would have been processed to arbitration but for racially discrimi- natory reasons, the failure so to process it violates the Act because the statutory agent's duty is to represent without regard to race. To paraphrase a portion of,the Intermediate Report of Trial Examiner Reel in Hughes Tool, supra, whatever may be the bases on which a statutory representative may, properly decline to process grievances, the bases must bear a reasonable relation to the union's role as bar- gaining representative or to its function as a labor organization; manifestly, racial discrimination bears no such relationship., The grievances concerning segregated plant facilities. The re- maining grievances which the Respondent refused to process involve the Negroes' desire to enjoy "all plant privileges." The subject mat- ters are segregated restrooms, showers, and dining rooms and the alleged exclusion of Negro employees from the plant's golf course, none of which is a specific subject of a contractual provision. To the extent that the grievances were detailed on appeal to Burdon, he ruled that the Respondent should process them. The Respondent, 8 The fact that those disadvantaged by the' discrimination were also members of the same union which committed the discrimination does not prevent 8(b) (2) from being violated. Radio Of/icer8' Union, etc. v. N.L.R.B ., 347 U.S. 17; Miranda Fuel Company, Inc., 140 NLRB 181, enforcement denied 326 F. 2d 172 (C.A. 2). Although the court denied enforcement in Miranda, the decision is not an adverse precedent here. The three judges who decided the case wrote three diverse opinions ( one judge favoring enforcement), and the prevailing 'view was that the conduct of the union there had not been invidiously motivated. See Lawrence F. Cafero v . N.L.R B., 336 F. 2d 115, 116 ( C A 2), where three other judges of the same court said that a "synthesis of the majority and concurring opinions in that case [Miranda ] Indicates that a complainant such as petitioner must show, at the very least, that the union has arbitrarily or capriciously discriminated against him." In the instant case, such discrimination, being racially motivated , is clear beyond question. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, rejected the grievances about the golf course and the din- ing facilities without explanation while asserting that it would "actively" oppose desegregation of the "shower heads" and "toilet stools." With respect to the golf course, the Trial Examiner found that the evidence "indicated" that Negro employees are excluded from it, but he did not discuss the issue further. We hold, in agreement with the General Counsel and the Charging Party, that the privilege to play the course is a term or condition of employment, and that a refusal to process a grievance against exclusion of Negro employees from the course reflects an effort on the part of the Respondent to maintain job discrimination in favor of white employees. With respect to other plant facilities, the Trial Examiner found that the dining area for Negroes is substantially inferior to that for whites. The evidence concerning restrooms and showers is inade- quate to warrant a comparison, however. In any event, any com- parison is irrelevant because there no longer is any valid basis in law for the invidious "separate but equal" doctrine. As the Trial Ex- aminer recognized, the issue here is not purely a social matter and "[t]here can be little doubt that plant facilities for the use and con- venience of employees are conditions of employment, and, therefore, a proper subject of collective bargaining." Moreover, segregated plant facilities limit job and promotional opportunities for Negro employees.6 The Trial Examiner found that segregated facilities were still being maintained at the time of the hearing and that the Respondent had expressed firm opposition to desegregation, but the Trial Examiner was of the view that- ... while union sponsorship of a program of "separate but equal" plant facilities would appear invidious and racially discrimi- natory, nonetheless a wide range of discretion must be allowed the statutory representative in determining the demands to be made [in collective bargaining] and when to make them. 6 See, e.g., the collection of articles entitled "Selected Studies of Negro Employment in the South," published by the National Planning Association Committee of the South ( 1955). In two studies , Hawley, "Negro Employment in the Birmingham Metropolitan Area," and Wesson, "Negro Employment Practices in the Chattanooga Area," at pages 271 and 411, respectively, it was found that the financial cost to employers of installing and maintain- ing segregated facilities for Negroes constitutes a barrier to the hire of Negroes in jobs other than those already open to members of their race. Of course, the barrier is as applicable to promotions and transfers of Negro employees as it is to hires of Negro ap- plicants. A third study, Hope, "Negro Employment in three Southern Plants of Inter- national Harvester Company," reflects the viewpoint of one employer , intent upon ending racial job discrimination in its plants , that such objective could not be accomplished without abolishing segregated plant facilities . See, particularly, pages 53-54 and 119-120. In connection with the last-mentioned study, we note that the Company in the instant case said in its letter of March 21, 1962, to the chief of ordnance that "the plant will not engage in" racial discrimination in "yob opportunity , transfer, promotion, layoff or compensation." LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC . 319 The Trial Examiner concluded that the Respondent's refusal to proc- ess the grievances calling for the desegregation of plant facilities was not an unfair labor practice. We disagree. The test to be applied in evaluating an exercise of discretion by a statutory bargaining representative is found in Ford Motor Company v. Huffman, 345 U.S. 330, 337-338, where the Court said : ... Their [representatives'] statutory obligation to represent all members of an appropriate unit requires them to make an honest effort to serve the interests of all of those members, with- out hostility to any. [Authority cited.] ... The bargaining representative, whoever it may be, is re- sponsible to, and owes complete loyalty to, the interests of all whom it represents.... A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. Contrary to the Trial Examiner's view, there is no justification for the Respondent's refusal to process, and for its "actively" opposing, the Negroes' grievances for an end to segregated plant facilities. Rather, the quotation from the Ford Motor case supports the conclusion that the Respondent's action or inaction in this connection was invalid. As that case makes clear, the range of discretion allowed to a statutory representative is accompanied and limited by a requirement that such representative consistently exercise complete good faith and honesty of purpose. Obviously, a statutory representative's conduct to maintain an unlawful end finds no defense in the representative's belief, however sincerely held, that the end is desirable. The Respondent's refusal to proc- ess the grievances relating to plant facilities was based clearly upon its belief that some discriminatory job conditions should continue. Under these circumstances, we must conclude that the Respondent breached its duty of fair representation and thereby violated Section 8(b) (1) (A), (2), and (3). Comments concerning the dissent. Our dissenting colleagues have reiterated their view that breach of the duty of fair representation does not violate Section 8 (b). We understand their reasoning with respect to the 8(b) (2) and (3) issues,? but we confess to difficulty in comprehending their position on 8(b) (1) (A) because 7 With respect to the 8 ( b) (2) issue and our colleagues' reliance upon the court's majority opinions in Miranda Fuel, see footnote 5, supra. With respect to the 8(b) (3) issue, our colleagues do not find a violation apparently because of their belief, which they expressed in Hughes Tool, supra, that under 8(b) (3) there is no duty which flows from a representative to employees whom it represents. 775-692-65-vol. 150-22 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Hughes Tool, supra, they found a violation based, as they saw it, on a union's refusal to process the grievance of a nonmember. Here they find no violation, apparently because the victims of the dis- crimination are members. We must perforce conclude that as union membership is their touchstone, they in fact relied on the "right to refrain" clause of Section 7 to find a violation in Hughes," notwithstanding their disclaimer of such reliance." This leads them to the curious result that employees who follow the route of self- organization obtain less statutory protection than those who do not, a position inconsistent with their statement in Hughes that the "purpose of the Act is primarily to protect the organizational rights of employees." Our position is that the violation of Section 8(b) (1) (A) does not turn on the membership or nonmembership of the rejected grievant but on the union's breach of its duty, recognized in numerous Supreme Court cases, to represent fairly all employees in the unit. In an earlier Hughes Tool case, 104 NLRB 318, 326 (1953), the Board, in speaking of the duty of a statutory representative to process the grievances of employees in the bargaining unit, said : Discrimination in the performance of the duties of the rep- resentative designed to deny equal treatment to those of the minority is to subvert the privilege and rights granted by the statute. Whether such discrimination is based on union mem- bership or the lack thereof, rather than on considerations of race, creed, or color is, in our opinion, irrelevant. Our colleagues apparently would confine this insight to repre- sentation cases or apply it to unfair labor practice cases only when the "irrelevant" consideration of nonmembership is present. We submit that a union's duty not to discriminate unfairly 'against nonmembers in presenting grievances, which our colleagues rec- ognized in Hughes, is no different from its duty not to discriminate unfairly against members in presenting grievances, and that the touchstone is not the irrelevant consideration of membership but the relevant requirement of fair representation of all employees in the unit. See the Supreme Court cases cited supra; Tunstall v. 8 Section 7 reads, insofar as pertinent here: Employees shall have the right to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and shall also have the right to refrain from any or all of such activities . . . . - 8In Hughes, our colleagues said that "Section 7 [ of the Wagner Act] was continued substantially unchanged in the Taft -Hartley Act except for the addition of the 'right to refrain' clause , which is not material to our problem." [Emphasis supplied.] As we demonstrate here, however, that clause, far from being immaterial to our colleagues' point of view, is the heart of it. LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 321 Brotherhood of Locomotive Firemen and Enginemen et al., 323 U.S. 210; Hunt et al. v. Crwmboch, 325 U.S. 821, 825-826. We have expressed our conviction that in Hughes our colleagues were in error when they disclaimed reliance on the "right to refrain" clause of Section 7 in finding a violation of Section 8(b) (1) (A). We also 'express our conviction that our colleagues were in error in that case in disclaiming reliance upon a breach by the union of its statu- tory duty bf fair representation. The Steele and Tunstall. cases established that a corollary of such is a statutory right possessed by -employees to be represented fairly; the right being "derived from" the duty. Steele,' 323 U.S. at 204; Tunstall, 323 U.S. at 213. Another case, Thompson v. Brotherhood of Sleeping Car Porters, 316 F. 2d 191 (C.A. 4), established that the right of an employee to have his grievance processed by his representative, notwithstanding his lack of membership in the representative, is one of the rights to fair representation. It is just such -a right which our colleagues held in Hughes is a Section 7 right, the breach of which violated Section 8(b) (1) (A). As we understand the appli- cable case law, our colleagues' conclusion that there was no violation of Section 8(b) (1) (A) in this case is not only unsound, it cannot be reconciled with our colleagues' 8(b) (1) (A) conclusion in Hughes. We are not unmindful that in title VII of the Civil Rights Act of 1964 the Congress'has legislated concerning racial discrimination by labor organizations. But the reach of title VII goes far beyond such discrimination, proscribing as it does discrimination on the basis of race, color, religion, sex, or national origin by employers, employment agencies, and joint labor-management committees, as well as labor' organizations. Moreover, the Board's powers and duties are in no way limited by title VII. On June 12, 1964, before the passage of the Civil Rights Act of 1964, the Senate rejected by a vote of 59 to' 29 an amendment to title VII which had been proposed by Senator Tower (R., Texas) and which perhaps would have had the effect of limiting the Board's powers. See the Con- gressional -Record (daily copy), 88th Cong., 2d sess., pp. 13171- 13173. The proposed amendment read : EXCLUSIVE REMEDY SEC. 717. Beginning on the effective date of sections 703, 704, 706, and 707 of this title, as provided in section 716, the provisions of this title shall constitute the exclusive means whereby any department, agency, or instrumentality in the executive branch of the Government, or any independent agency of the United States, may grant or seek relief from, or pursue any, remedy with respect to, any employment practice of any employer, employment agency, labor organization, or joint labor- 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management committee covered by this title, if such employ- ment practice may be the subject of a charge or complaint filed under this title. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. Specifically, we shall order the Respondent to comply with its duty of fair representation by processing the grievances con- cerning backpay and desegregation of plant facilities. The proc- essing shall include arbitration because the record establishes that that step is essential to assure the complainants an impartial resolu- tion of the merit of their grievances. Finally, we note anew that the Respondent, when purportedly ending its invalid interpretations of contracts in 1962, agreed orally with the Company that future interpretations will not result in racial discrimination. We shall order the Respondent to implement that oral agreement by proposing to the Company specific contractual provisions to prohibit racial discrimination in terms and conditions of employment, and to bar- gain in good faith to obtain such provisions in a written contract. We are convinced that such an order is necessary in view of (1) the long history of the Respondent's invalid interpretations of contracts, (2) the failure of the Respondent to do more in 1962 than reach an oral agreement with the Company, and (3) the Respondent's continuing resistance to its duty of fair representation as reflected by other facts recited herein. The oral agreement of 1962 must be reduced to writing in particularized form if the Respondent's unfair labor practices are to be rectified and if there is to be a fulfillment of its statutory duty of fair representation. Our order in this respect does not differ materially from those in scores of cases in which we ordered employers to reduce to writing, and sign, oral agreements which they had reached with their employ- ees' representatives. 'See, e.g., the early case, H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 524 (1941), in which the Court said that a written agreement is essential "to provide an authentic record of its terms which [can] be exhibited to employees ...." CONCLUSIONS OF LAw The Respondent, by refusing to process the grievances relating to (1) backpay for some or all of the complainants and (2) desegrega- tion of plant facilities, restrained and coerced employees in the exercise of their Section 7 right to be represented without invidious LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 323 discrimination, caused and attempted to cause the Company to dis- criminate against employees in violation of Section 8(a) (3), and refused to bargain in their behalf, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (1) (A), (2), and (3) and Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from : (a) Restraining or coercing employees in the exercise of their rights under Section 7 of the Act by failing or refusing to process a grievance because of an employee's race or color. (b) Refusing to bargain on behalf of any employee in the bar- gaining unit by failing or refusing to process his grievance because of his race or color. (c) In any like or related manner causing or attempting to cause the Company to discriminate against employees in violation of Section 8(a) (3). (d) Failing or refusing in any manner to fulfill its statutory duty of fair representation toward any or all employees in the bargain- ing unit. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act : (a) Process the grievances of David Buckner and other com- plainants concerning backpay and desegregation of plant facilities, as set forth in the section entitled "The Remedy" of this Decision. (b) Promptly propose to the Company specific contractual pro- visions prohibiting racial discrimination in terms and conditions of employment, and bargain in good faith with the Company to obtain,such provisions in a written contract, as set forth in said section entitled "The Remedy." (c) Post at its business office and meeting hall in East Gadsden, Alabama, and all places where notices to its members and other employees in the bargaining unit customarily are posted (including all such places in the Company's plant), copies of the attached notice marked "Appendix." 1e Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed 10 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "As ordered by" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order of". 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by an official of the Respondent, be posted by it immediately -upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN McCuLLOCH and MEMBER FANNING, dissenting: Because 'we believe that Congress has not made it an unfair labor practice for a labor organization to violate its duty of fair repre- sentation, as such, and on the facts of this case perceive no other statutory basis for the majority holdings in this case, we are con- strained to dissent. Our views in this regard have been set out in our dissenting opinion in Miranda Fuel Company, Inc., 140 NLRB 181, enforcement denied 326 F. 2d 172 (C.A. 2), and in our separate opinion in Independent Metal Workers Union, Local No..1 (Hughes Tool Company), 147 NLRB 1573." In commenting on the foregoing, the majority Members have pro- fessed an inability to understand our,dissent to the 8(b) (1) (A) find- ing. We thought we had made our general position clear in our opinions in the Miranda and Hughes Tool cases. We restate it succinctly here : 1. As a correlative to the right of representation under Section 9(b) of the Act, a bargaining representative owes a duty fairly and impartially to represent all employees in the bargaining unit. 2. However, there is nothing in the wording of Section 7' or of Section 8(b) (1) (A), and nothing in the legislative history of the Wagner Act and of its subsequent amendments, which indicates that Congress intended to make the right of fair representation a pro- tected Section 7 right. On the contrary, the legislative history indi- cates, in our opinion, that Congress had no such intention. There are also practical and policy reasons, set forth in our separate opinion in Hughes Tool, why the Board should not read a right of fair repre- sentation into Section 7 without a clear mandate from Congress. 3. Although it is not an unfair labor practice for a bargaining representative to violate.its duty of fair representation, such viola- tion is sufficient reason for revoking the representative's certification. 4. In Hughes Tool, we agreed with the majority that the respond- ent union had violated Section 8(b) (1) (A) by refusing to process "See Comment, Discriminattion and the NLRB : The Scope of Board Power -Under Sections 8(a) (3) and 8 (b) (2), 32 U. M. L. Rev. 124 (1964). LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 325 a grievance in behalf of a nonmember, in this case a Negro, but not because the union had violated its duty of fair representation. We said : This refusal to represent him in a grievance matter because of his nonmembership was to this extent predicated upon a con- sideration specifically condemned by the Act, and therefore prima facie restrained or coerced him in violation of Section 8(b) (1) (A). [Citations omitted.] In our opinion, Congress has not made all unfair conduct by a labor organization an unfair labor practice, but only such conduct which relates to "union membership, loyalty, the acknowledgment of union authority, or the performance of union obligations." 12 In the pres- ent case, unlike Hughes Tool, the representative's refusal-to, proc- ess a grievance for a member of the bargaining unit cannot be found to be related to any of the above factors. Accordingly, we perceive no statutory basis for holding that this refusal violated Section 8(b) (1) (A). The majority's analysis of our concurring opinion in Hughes Tool, and of our dissent here, misconstrues our position. In finding a violation of Section 8(b) (1) (A) in Hughes Tool, where the respond- ent union admittedly refused to process a grievance for a non- member, we did not, as the majority states, rely unconsciously on the "right to refrain" clause in Section 7. Our reasons were broadly based and are explicitly set forth in our opinion in that case. They are our only reasons. Nor is it fairly to be inferred from the result we reached in Hughes Tool,. as contrasted with the result we reach in this case, that we in effect have been led to the conclusion, in the words of the majority, "that employees who follow the route of self- organization obtain less statutory protection than those who do not." That is not our position at all. We were not-because we believed the statute gave us no authority to do so-protecting the employee grievant in Hughes Tool under Section 8 against a refusal to give him fair representation, i.e., against racial discrimination, much as we agreed with the majority in deploring such a default. It was because the employee's nonmembership in the respondent union was a causative factor in the union's action that we found the refusal to handle the grievance was unlawful on accepted principles under Sec- tion 8(b) (1) (A). Discrimination on the basis of union membership is a form of discrimination' that is specifically brought within the purview of the unfair labor practice provisions of the Act. Where related to employee job interests, such discrimination has always been 12Animated Displays Company, 137 NLRB 999, 1010 (Chairman McCulloch and Mem- ber Fanning concurring in part and dissenting in part). 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD held to infringe upon employee Section 7 rights, and this was true even before the 1947 amendments added the "right to refrain" clause to Section 7. Those union membership considerations which are clearly condemned by the Act being absent here, the basis for our finding of a violation is absent. We are not penalizing racial discrimination in one case, that of the nonmember, and tolerating it in another, that of the union member. We believe that Section 8 of the Act does not reach that kind of discrimination in either case. It was, on the other hand, clearly intended to prevent restraint or coercion, or job discrimination, based on union membership considerations. In our view, Congress did not under Section 8(b) intend that the Board police all unfair conduct by a labor organization. On the contrary, it intended to subject to the prohibitions of that section only such conduct which is motivated at least in part by union membership considerations, or the operation of some union rule, obligation, or authority.13 The majority also refers to certain language in an earlier Hughes Tool case, 104 NLRB 318, 326, as inconsistent with our decision in this case and our position in the recent Hughes Tool case. The earlier Hughes Tool case was a representation proceeding involving a motion to revoke the certification of the bargaining representative because the representative had announced that it would require non- members to pay a fee for processing grievances. The Board majority in that case rejected the contention that the propriety of the repre- sentative's conduct had to be tested in an unfair labor practice pro- ceeding before a motion to revoke the certification could be enter- tained. The majority said (104 NLRB at 323) : Moreover, to accept such a disposition would be to find that only matters subject to the provisions of Section 8(b) constitute suf- ficient abuse of the duties of the certified bargaining agent to warrant revocation of the certificate. On the contrary, we be- lieve that the negative prohibitions upon certain conduct by labor organizations found in Section 8(b) are not wholly inter- changeable with, and equivalent to, the affirmative duties arising under a certification through the processes of Section 9. Accordingly, we are not ... testing the "legality" of the Inde- pendent's conduct in this proceeding. While that question would be the issue in a prosecution under Section 8 (b) ... the question in the instant proceeding is whether or not the conduct is incom- patible with the status and obligations of a certified bargaining representative. is See Chairman McCulloch's separate statement in Maremont Corporation, 149 NLRB 482. LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC . 327 In other words, the Board in the earlier Hughes Tool case simply decided that, without regard to whether the legality or illegality of the conduct was cognizable under Section 8(b), the Board would entertain a motion to revoke a union's certification for violation of the duty to fair representation where discrimination of any kind in- compatible with that duty appeared, and so it was irrelevant to the consideration of such a motion that the discrimination practiced against some employees was based on "union membership or the lack thereof, rather than on considerations of race, creed, or color . . . ." We agree wholeheartedly with this position. Whatever the reason for violation of the duty of fair representation-membership, race, color, religion, political affiliation, or any other arbitrary or invidious factor-and without regard to whether such conduct constitutes an unfair labor practice under Section 8(b), we would consider breach of that duty sufficient reason to revoke a representative's certification. But simply because breach of that duty provides reason for revok- ing a certification does not mean that it also provides a sufficient basis for finding a violation of Section 8(b) (1) (A). The duty of fair representation derives from Section 9 and in our view was never contemplated by Congress as one that might fall within the compass of Section 7 to which Section 8(b) (1) (A) is specifically and solely tied. We must apply the statute according to its legislative intent, and we have no warrant to stretch the reach of Section 8(b) (1) (A) beyond that intent. This is particularly true with respect to the matter involved here since Congress has already seen fit to legislate in the area of union racial discrimination through a separate statute rather than through amendments to ours. APPENDIX To ALL OUR MEMBERS, OFFICERS , AND AGENTS To ALL EMPLOYEES OF GOODYEAR TIRE AND RUBBER COMPANY As ordered by the National Labor Relations Board and in order to conduct the business of Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as required by the National Labor Relations Act, we notify you that : WE WILL NOT fail or refuse to process an employee's grievance because of his race or color. WE WILL NOT in any other manner fail or refuse to fulfill our statutory duty to represent fairly all employees in the bargain- ing unit. WE WILL process the grievances of David Buckner and other Negro employees concerning backpay and desegregation of plant facilities. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL promptly propose to Goodyear Tire and Rubber Company specific contractual provisions prohibiting racial dis- crimination in terms and conditions of employment, and we will bargain in good faith with the Company to obtain such provi- sions in a written contract. LOCAL UNION No. 12, UNITED RUBBER, CORK, LINOLEUM R PLASTIC WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If any employees have questions about this notice or whether Local Union No. 12 is complying with its provisions, the employees may communicate with the Labor Board's Office at 1203 City Federal Building, 2026 Second Avenue N., Birmingham, Alabama, Telephone No. 323-8011. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and amended charge duly filed on October 22, 1962, and March 19, 1963, respectively, by The Business League of Gadsden, herein called the Business League or the Charging Party,l against Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, herein called the Respondent or Local 12, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint against the Respondent on March 28, 1963, alleging that the Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(b)(1) (A), (2), and (3) and Section 2(6) and (7) of the National Labor Relations Act. In its answer, the Respondent denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held before Trial Examiner Ivar H. Peterson in Gadsden, Alabama, on September 30 and October 1, 1963, at which all parties were represented by counsel and were afforded full opportunity to examine and cross- examine witnesses, to argue orally on the record , and to file briefs . Counsel for all parties have filed briefs, which have been duly considered. Upon the entire record in the case,2 and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Goodyear Tire and Rubber Company , an Ohio corporation with an office and place of business at East Gadsden , Alabama, is there engaged in the manufacture i In the original charge the party filing the charge was named as "The Business League of Gadsden (David Buckner and Others attached )" and in the amended charge as "The Business League of Gadsden ( David Buckner et al. )." Buckner signed both charges, with no indication he was acting in a representative capacity . He testified that the Business League "is an organization on a fraternal order for a better business community, and better jobs for the city of Gadsden " iAt the hearing, I rejected Respondent's Exhibit No. 4 as not relevant, and ordered it placed in the file of rejected exhibits. Upon further consideration , I have concluded that the document was sufficiently identified and is relevant, and I now reverse my ruling and Respondent's Exhibit No. 4 is received in evidence. LOCAL 12 , UNITED RUBBER, CORK, LINOLEUM, ETC. 329 and sale of automobile tires and allied products . In the 12 months preceding the issuance of the complaint, the Company sold and shipped products from its East Gadsden plant valued in excess of $50,000 to points outside the State of Alabama. The Respondent admits and I find that the Company is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union No . 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, which admits to membership employees of the Company, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts The principal question here presented is whether Local 12, the exclusive collective- bargaining representative of an appropriate unit of employees of the Company,3 for reasons based upon racial considerations , violated the Act in the handling it accorded certain complaints of eight Negro employees in the bargaining unit, who were and are members of Local 12 . The General Counsel's complaint alleges that on Decem- ber 8, 1961 , and specifically on April 24 and July 13 and 16, 1962, Local 12, the Respondent, refused upon request "to investigate, process and seek adjustment of grievances" in behalf of eight named employees in the bargaining unit and, "for reasons based on racial considerations , caused or attempted to cause Goodyear to maintain and continue discriminatory and invidious conditions of employment" for these employees, thereby discriminating against them in violation of Section 8 (b) (1) (A) and 8 ( b) (2) of the Act . The complaint further alleges that on and after Decem- ber 8, 1961, and particularly on April 24 and July 13 and 16, 1962, "for reasons based on racial considerations," the Respondent refused, although so requested by these employees, "to bargain collectively with Goodyear ... particularly concerning their grievances" previously referred to, thereby violating Section 8 (b)(3) of the Act. The facts underlying these allegations are substantially undisputed. Local 12 has been the collective -bargaining representative of the Company's East Gadsden plant employees since it obtained its first agreement in 1943. Even before Local 12 was recognized, and thereafter until March or April 1962, certain jobs were allocated to white employees and other jobs to Negro employees . By custom and practice, three separate seniority groups-white male, colored male, and female- were maintained , although the collective-bargaining agreement between the Company and Local 12 did not specifically so provide . On the contrary, the agreement appears to provide for plantwide seniority , without regard to race or sex . In a letter of December 7, 1961 , to William B. Henninger, labor officer of the Birmingham Ord- nance District, the Company's personnel manager, E. G. Lytle, described the opera- tion of the seniority system as follows: Under the custom long followed in this plant and specifically since the date of the first contract with Local 12 ... ( 1943 ) we have hired , laid off, transferred, upgraded, etc., employees within three groups. These groups are white male, colored male, and female. Never have we recognized any rights that would allow employees of one of these groups to intrude upon another. This has resulted in employees of one group being laid off with junior employees of another group being undisturbed. In 1958 over one hundred ( 100) white males were laid off while we retained colored males with less seniority . This year the reverse has been true . We have had some eight or nine colored employees on layoff while we have hired and retained younger white males. Since this application has been made to the seniority provisions and since it has applied to upgrading as well as layoffs and hires, it has come to be regarded in the very same manner as departmental or divisional seniority.... The colored group as well as the whites have been diligent in keeping vigilance over the jobs within their group of departments . On a number of occasions in recent years complaints have been raised charging a violation of the above 3It is admitted that the Respondent, at all times material , was the exclusive representa- tive of the following unit: "All employees of Goodyear, at its plant at East Gadsden, Alabama, but excluding office clerical employees, professional employees , guards, and super- visors as defined In the Act." 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described procedure and where the complaints had merit, adjustments were made after periods of negotiations between the Company and the Union. The Union being represented by both white and colored Union Representatives. While the Union Agreement does not outline anything specific on the above described procedure, as a matter of custom and interpretation by the Company, the Union and the colored employees, this practice has been regarded as being valid under the terms of the contract. The foregoing description of the manner in which seniority was administered in the plant here involved is in accord with the testimony adduced by the General Counsel and the Respondent. I find that at least until March or April of 1962 racially separate seniority groups were maintained, with the result that as to promo- tions, transfers, layoffs, and recalls Negro employees with greater plant seniority had no rights over white employees with less seniority, and vice versa. Also by custom and tradition racially separate plant facilities, such as lunchrooms, restrooms, and showers were maintained, although no provision in the collective- bargaining agreement so required or otherwise dealt with such matters. There is also evidence, although inconclusive, that the plant golf course was not available to Negro employees. At some point, not established by the record but after the initiation of the grievances here involved, the signs designating restrooms as "Colored" or "White" were removed; however, at the time of the hearing restrooms and showers were still racially segregated as to use and in some instances crayon markings ap- peared on the doors denoting the use thereof for "White" or "Colored." The lunch- room used by white employees, according to the undenied and credited testimony of David Buckner, one of the complainants, is a "large dining room," whereas the separate eating area used by Negro employees consists of "two tables connected together seating about a dozen and a half men," and located adjacent to a waste dis- posal line.4 So far as appears, no request or attempt to use any particular plant facilities not previously used by or available to them had been made by any of the complainants. The eight complainants, all Negroes, were laid off in August or September 1960, and were recalled about a year later. In about September or October 1961, when he was again being laid off, Buckner discussed the matter with his immediate super- visor, a Mr. Smith, and with Ross Thomas, assistant manager of the Company's labor department. Buckner had bid on a job that was then posted and asked Thomas why he was being laid off when an employee with less seniority was still working; Thomas told him that he could not get the posted job because it was a "white job." Buckner then spoke to the Local 12 division chairman, Ernie Hayes, stating he wished to register a complaint on account of his layoff and having been denied the posted vacancy for which he had applied. Hayes suggested to Buckner that more considera- tion might be given the complaint if others similarly situated joined with him. Buckner and the other complainants, who were also in layoff status, then executed affidavits stating that during their period of layoff following August or September 1960, "new workers have been hired in violation of plant seniority rules"; these affidavits were forwarded by the Business League, under date of October 2, 1961, to Lindsey Ellsberry, the then president of Local 12, with the request that Local 12 investigate and take remedial action. Ellsberry took no action. The letter from the Business League and the affidavits were turned over to E. K. Bowers late in October, when Bowers succeeded Ellsberry as president of Local 12. On December 4, 1961, the complainants met with Bowers and stated they wanted to meet with the grievance committee of Local 12 for the purpose of discussing the grievances that had been filed with Ellsberry. Bowers assisted them in preparing a written request, asking that the meeting be held on December 8, and he then prepared and handed Buckner a letter, dated December 5, granting the request. Also on December 4, Bowers met with William B. Henninger, labor officer of the Birmingham Ordnance District, who discussed the complaints with Bowers. Bowers, in a letter to Henninger dated December 5, stated the position of Local 12 as follows: You will recall that during a visit to my office yesterday, you notified me that you had complaints from certain colored members of our local union and that these complaints alleged that these members had been denied certain rights that, in their opinion, was [sic] awarded them by the seniority provisions which are contained in the contract between our organization and the Goodyear Tire and Rubber Company, and that they were seeking redress by requesting that they be recalled immediately and paid for all time lost as a result of the alleged contract 4 The record does not disclose the relative proportion of Negro and white employees. LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 331 violation. In this same meeting, you requested that I give you a statement concerning the Union's position on this matter, which I agreed to do. Therefore, this communication is intended to serve that purpose. First of all, the seniority provisions of our contract on these points are essen- tially the same as appeared in the first contract between the parties dated Au- gust 25 , 1943. These provisions have been carried in each of the succeeding contracts since that time and are being applied at the present time in exactly the same manner that they have been applied over these several years. It has been, and still is our opinion that the application given these provisions by the Company are in accord with the intent and purpose of said provisions and does not represent a violation of any provision of our agreement . While it is true that these members are laid off, at a time when white male employees are being hired, it is also true that we have female employees laid off during this same time. It is also true that on previous occasions in past years, we have had white male employees laid off while hiring colored employees. In other words, there has never been an inter-change between these three groups of employees, irrespective of seniority of employees affected . And, neither we nor the Com- pany have ever considered this to be a contract violation or a discriminatory application which would adversely affect either of the three groups referred to above. The only determining factor as to which group might be on the increase or decrease so far as job opportunities are concerned has been the fluctuation of work or production requirement on jobs that have traditionally been performed by the respective group. It doesn't seem to me that this should represent an unusual condition since it is common in industry today to lay off senior employees while retaining junior employees on the payroll with the determining factor being whether the parties to the contract have agreed upon a job, department , division or plant-wide recognition of seniority for the purpose of job placement . The only difference that I can see in this particular situation is that our seniority provisions per- taining to job rights are and have been applied group-wide within the three mentioned groups with certain qualifying requirements. In view of the above, it is our opinion that our contract has not been violated and that no discriminatory practices are in effect which adversly [sic] affects our colored members which hasn't in the past, and will in the future, work to their advantage in that white employees with more seniority than colored employees have not and will not be allowed to perform work that is normally performed by our colored members. Bowers concluded his letter by stating that the complainants had requested and been accorded a meeting with the grievance committee , and that if they were not satisfied with any decision made locally an appeal could be taken to the Interna- tional Union. The complainants met with the grievance committee on December 8, 1961, and presented the following "Statement of Complaint" which had been drafted by Henninger, who had given a copy of it to Bowers prior to the meeting: 1. Complainants say that according to the contract , original lay-off and recall have not been in accord with contract -stated seniority; therefore ( 1) they should be recalled and (2) they should be paid for the period of layoff that lower senior- ity workers were employed. 2. Complainants, upon recall, want, in accordance with the contract, all of the transfer privileges established by Article X, Section 17, (exclusive of any right to transfer into the Engineering Division-See Sec. 21). 3. Complainants want the right of all plant privileges without color barriers. Bowers wrote to Buckner on December 13, stating that the grievance committee had concluded "that no contract violation exists, therefore the Union has no grounds on which to base a complaint against the Company," and enclosed a copy of the foregoing letter to Mr. Henninger , "in order that you might more fully understand the reasoning behind this decision." The complainants , on December 21, took an appeal to the executive board of Local 12, expressing the view that the grievance committee "chose to ignore all complaints of the discriminatory [sic] practices in force at the local plant, which are being maintained solely on account of race and color in direct violation of the President's Order forbidding discrimination based on race and color on work performed under Government Contracts ." Bowers, as chair- man of the executive board, replied on December 27, notifying the complainants that they could appear before the executive board at its next meeting on January 15, 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1962. The executive board denied the appeal and sustained the action of the griev- ance committee, and the complainants were so advised by Bowers on January 19 and were also informed that they could appeal to the union membership.5 On January 30 the complainants gave notice of their appeal to the membership. The complainants appeared before the membership meeting on February 26, at which time the membership voted to deny their appeal for the reasons set forth in the December 5 letter to Mr. Henninger. On March 5, 1962, the eight complainants appealed the action of Local 12 to International President George Burdon. The specific items of their complaint were set forth as follows: A. We have all been recalled to work, but we have not been compensated for the time we were laid off in violation of the plant seniority provisions of our contract. B. Negroes are not permitted to transfer from one department to another. C. Negroes are not permitted to be upgraded and promoted as are other workers. D. Negroes are not permitted to enjoy all plant privileges as are other workers. E. Negroes are not permitted to take company training programs as are other workers. On March 22, International President Burdon wrote to the complainants and Bowers, acknowledging the appeal, requesting that the complainants furnish him with "a statement setting forth in as much detail as you can specific instances where Negroes were not permitted to do the things to which you refer," and that Bowers provide "a statement of the position of the Local Union with respect to each of the five complaints which is the subject matter of this appeal." Bowers replied to Burdon under date of April 5, 1962; he first pointed out that Local 12, at the several levels of processing the complaint, had before it the three- paragraph "Statement of Complaint" originally submitted to the grievance committee on December 8, 1961, and not the five-point statement (quoted above) which was attached to the appeal filed with Burdon. Accordingly, Bowers restricted his com- ments to the matters stated in the "Statement of Complaint." As to the first paragraph of the complaint, Bowers stated that Local 12 "does not agree" that the complainants had been laid off in violation of the contract, and referred to the letter he sent Henninger dated December 5 as containing the Local's position and the letter of December 7 from the Company to Henninger as stating the Company's position. He also noted that the complainants had been recalled and, on the question of pay for the period of layoff, stated he understood "that the Federal Government is to make a decision on this point." Regarding the second paragraph of the complaint, per- taining to the exercise of transfer privileges, Bowers stated "the appellants do have this privilege and are now exercising and enjoying the benefits of these rights," noting that two of the appellants "exercised their rights under this section on Tuesday, April 3, 1962, and the transition seems to be working rather smoothly." With respect to the third paragraph of the complaint, in which the complainants stated they "want the right of all plant privileges without color barriers," Bowers stated: Paragraph #3 requests the right of all plant privileges without color barriers. While this request is not too clear and has not been discussed by the appellants to the extent that Paragraph #I and # 2 has been, yet I understand that this point # 3 has specific reference to the mixing of races in toilets, shower rooms, etc. On this point, the local union does not concur. In fact, we disagree with the idea that colored and white members could or should be required to sit on the same toilet stools and to bathe together under the same shower heads, unless it is the desire of both parties to do so. Therefore, the local union has not and does not intend to promote this arrangement. International President Burdon rendered his decision on the appeal on April 24, 1962. He first noted that it was apparent "that the appellants have merely broken down the third item in the statement of complaint acted on by the Local Union" (i.e., that they "want the right of all plant privileges without color barriers") " into 5 At the meeting with the executive board, the complainants amended their "Statement of Complaint" to eliminate from the second point of the statement the parenthetical exclusion of a desire to exercise transfer privileges to the engineering department. LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 333 three specific items mentioned" in their appeal as items "C," "D," and "E" (i.e., that Negroes are not permitted "to be upgraded and promoted," "to enjoy all plant privi- leges," and "to take company training programs"). Burdon phrased the question presented by the appeal as being "whether the appellants were properly denied the right to process their grievances and if not satisfactorily settled, determined by impar- tial arbitration." He also observed that, as the exclusive bargaining agent, Local 12 had the obligation "to represent the employees impartially and without hostile discrimination." As to the position of Local 12 that there had been no violation of the contract and hence no valid grievance "because of a past practice with respect to layoff, recall and transfer in the application of the collective-bargaining agreement," Burdon said that without regard to "what the former interpretation of the contract was it appears that the interpretation may have been contrary to the express provisions of Article X [relating to seniority] of the collective bargaining agreement"; determination of that question-"whether the contract was violated in the layoffs complained of by the appellants"-"should be made by the impartial umpire." Burdon noted that the complainants had been recalled, but said that "the question of compensation for improper time lost" raised a problem of contract interpretation and application and, since some or all of the complainants might not have been employed on Government work, the remedy, if the contract had in fact been violated, was an obligation of the employer. Concerning the second complaint, relating to recall and transfer privileges, Burdon observed that Local 12 contended that "the appellants now have this privilege and are now exercising and enjoying the benefits of recall and transfer rights"; noting that Local 12's answer referred to the fact that two of the complainants had exercised such rights on April 3, after the appeal, he said it was possible "that this complaint which the action of the Local Union membership refused to process may be cured." How- ever, he added that if "it has not been cured to the satisfaction of the appellants a grievance should be processed by the Local Union." With respect to the complaint involving plant privileges, Burdon said there was "nothing in the collective bargaining agreement which permits a differentiation in the kind of working conditions enjoyed by one group or another," and concluded that as to this matter "there may be a justifiable grievance which should be processed, depend- ing upon the facts and the decision rests with mutual agreement, in the grievance procedure, or a determination by the impartial umpire." Burdon finally concluded: "In the light of all of the information supplied the International President by the appellants and the Local Union it is the decision of the International President that the appeal be sustained and the action of Local Union No. 12 of February 26, 1962, refusing to process the grievances of the appellants contained in their statement of claim should be reversed." What happened immediately following Burdon's decision reversing the action of Local 12 is not disclosed by the record. However, in a letter dated July 13, 1962, Bowers wrote to Burdon as follows, in answer to a letter from Burdon dated June 26 requesting Bowers' comments upon an enclosed "communication dated June 14 over the signature of eight of our members": 6 All of the original complainants involved in this matter are presently working and there is no distinction being made between races, so far as job assignments are concerned in the Gadsden plant. In fact, there have been numerous inter- changes, that is, colored people employed on jobs that were previously reserved for white people and several white employees employed on jobs that were formerly reserved for colored employees.... The statement that these people make to you that Negroes are not permitted to take company training programs as are other workers is erroneous. While it is true there have been no colored people placed in the training program, neither has there been any white people added to this group.... In other phases of this matter, I related to you in an earlier communication [apparently a reference to the letter of April 5] that this local union had no intention of supporting a program which would result in colored and white members of this union bathing under the same shower heads or sitting on the same toilet stools unless both parties desire to do so. In fact, we will actively oppose any such program and the quicker that the Gadsden Business League understands and believes this, the better off we're all going to be. 6 Neither Burdon's letter of June 26 nor the enclosed communication to which it refers is in evidence. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burdon again wrote to Bowers on August 27, noting "what has been done with respect to the integration of job assignments and to the training program" as outlined in Bowers' letter of July 13, and requested that he be informed whether the com- plainants "have sought to file and have grievances processed to recover lost time for layoffs ... they experienced before the integration of job assignments became effec- tive." On the same date he wrote the complainants that Local 12 had received his decision "reversing the action of the Local Union respecting the filing of grievances" and requesting that they inform him "what grievances you have attempted to file, pursuant to that decision, which have not been processed by the Local Union." Bowers replied to Burdon's letter of August 27 on September 24. Referring to Burdon's August 27 request of the complainants that he be informed as to grievances they had attempted to file but which had not been processed, Bowers said: "When you receive an answer to that question, I would suggest that you forward the same to our local union and upon receipt of this information, if the local union's position is any different than that as outlined to you in communication dated April 5, 1962, we will be glad to furnish you with that information." He concluded by saying that "unless there is some information or facts furnished to this office, our position will be that as outlined" in the April 5 letter. So far as the record shows, the complainants made no reply to Burdon's letter of August 27; in a letter of October 29, 1962, to the Business League, Burdon stated that as of that date he had received no reply to the inquiry he had directed to the complainants on August 27. In addition, he expressed disapproval of the action taken by the complainants, obviously referring to the filing of charges herein, in "seek[ing] outside assistance before exhausting all of the remedies which have been set forth in" the International constitution "and also before exhausting all of the remedies which have been set forth in the contract ... between Local Union No. 12 and the Goodyear Tire & Rubber Company for settling grievances." 7 Although Local 12 filed no formal grievance with the Company seeking to remedy the matters of which the complainants were complaining, union representatives dis- cussed with company officials and representatives of the Ordnance Department and the President's Committee on Equal Employment Opportunity 8 various phases of the racially segregated employment practices at the Company's plant. According to the undenied testimony of President Bowers, which I credit, these discussions culmi- nated in a verbal agreement, in the latter part of March or early in April 1962, between Local 12 and the Company to discontinue the past application of their col- lective-bargaining agreement confining Negro and white employees in the bargaining unit to particular jobs and limiting opportunities for upgrading, recall, and transfer to jobs thus separated on racial lines. On March 21, 1962, Personnel Manager E. G. Lytle and Plant Manager A. C. Michaels wrote to John A. Croghan, Office of General Counsel, Chief of Ordnance, Washington, D.C., as follows: March 21, 1962. DEAR MR. CROGHAN: Upon your visiting us here at the plant on Thursday, March 15, there were a number of questions which you asked with reference to our interpretation and intended adherence to the plan for progress which was signed in Washington earlier this year. Then, on the date of this letter, you phoned from Washington requesting us to confirm our answers to the following specific questions in writing: 1. That the plant will not engage in discrimination for job opportunity, trans- fer, promotion, layoff or compensation because of race, creed, color or national origin. 2. That the complainants who were the subject of the meeting with Mr. Henninger have now all been rehired. 3. That the two categories (that is, white male and negro employees) previ- ously in effect will not in the future be used to bar promotions or bring about layoffs. 7 A few days later, on November 2, Bowers wrote to the complainants, calling attention to those provisions of the International constitution which set forth matter constituting "offenses against the laws of the Local or International Union, and subject to penalty," and provide that no member shall appeal to "a civil court until he has exhausted his rights to appeal provided by this Constitution," violation of which subjects the member "to summary expulsion by the International Executive Board." 8 Established by Executive Order 10925 , March 6, 1961 , 3 CFR, 1961 Supp., p. 86. LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 335 4. That the Company declined to reimburse the complainants for loss of pay occasioned by previous layoffs of the complainants; the reason being that the practice heretofore in effect was one of long standing and custom and had worked both ways for many years. We confirm the above as written. Sincerely, (S) ----------------------- E. G. LYTLE, Personnel Manager (S) ----------------------- A. C. MICHAELS, Plant Manager Bowers testified that his first discussion with Personnel Manager Lytle with regard to the complainants' grievances occurred immediately following the December 8 meeting between the complainants and the grievance committee. He acknowledged that he agreed with the Company's position, as is readily apparent from the Decem- ber 5 and 7 letters sent Henninger by Local 12 and the Company, respectively, that the grievances lacked merit in the light of the past application of the contract. Prior to the March 21, 1962, letter from Personnel Manager Lytle to Mr. Croghan, Bowers had further discussions with Lytle relating to the grievances, and was given to under- stand that the Company, in the event the past racially segregated job practices were discontinued, would not compensate the complainants for their period of layoff for the reason expressed in Lytle's letter to Croghan. Bowers testified that in view of the past practice, as well as what he regarded as the "stale" nature of the complaint, Local 12 was of the opinion that there was no possibility of sustaining the grievances if they were formally processed under the grievance procedure established by the contract. He added, however, that he "would file a complaint in a minute if the same thing happened now, since we changed our practice. I would insist on its enforcement to the letter." On July 16, 1962, at a union membership meeting, Sandy Thornton and Herbert Maye, two of the complainants, inquired of Bowers, as Thornton testified, about the status of the complaint. According to Thornton, Bowers said they had no complaint and as far as he was concerned they could "go back to the government right where you started at." Bowers testified that he understood the inquiry as being concerned with "this question of the back pay for the period of layoff, that the boys felt they should be paid," and- that he answered the complainants as he did because, although Local 12 had decided "there was no chance at all of collecting that money" by processing the grievances through arbitration, he understood that Mr. Croghan had discussed with the Company the question of backpay for the complainants. B. Conclusions In order to bring the question to be decided into proper focus it seems advisable first to summarize the specific items of complaint which, it is alleged, the Respondent failed or refused to consider and process under the-grievance procedure, and also to discover whether the action (or inaction) of the Respondent Union occurred within the 6-month limitation period of Section 10(b). The initial charge in this proceeding was filed on October 22, 1962, and thus it becomes relevant to consider which, if any, of the conditions forming the basis of the complainants' grievances were in existence and unremedied after April 22, 1962, since the command of the statute precludes a finding that any unfair labor practices were committed prior to April 22. As formulated in their appeal of March 5, 1962, to International President Burdon, the grievances of the complainants were as follows: With respect to themselves, (1) they claimed they were entitled to be compensated for the period they had been laid off, assertedly in violation of the contract; with respect to Negro employees generally, they complained that Negroes, as distinguished from other workers, are not per- mitted (2) to transfer from one department to another, (3) to be upgraded and pro- moted, (4) to take company training programs, and (5) to enjoy all plant privileges. While it is abundantly clear that prior to the latter part of March or early April 1962 white and Negro employees at the Company's plant were confined to certain jobs and that separate seniority rosters were maintained according to race, it is equally clear that the Company, with the concurrence of the Respondent Union, agreed to end such practices more than 6 months before the charge herein was filed. Thus Plant Manager Michaels and Personnel Manager Lytle, in their letter of March 21 to Mr. Croghan, Office of General Counsel, Chief of Ordnance, confirmed that the plant "will not engage in discrimination for job opportunity, transfer, promotion, layoff or compensation because of race, creed, color or national origin," and also stated that the "two categories" of employees, white and Negro, theretofore in effect, "will not 775-692-65-vol. 150-23 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the future be used to bar promotions or bring about layoffs." In his letter of April 5, to International President Burdon, Bowers, president of the Respondent, stated that the complainants did enjoy transfer rights and that two of them had exercised such rights on April 3. On July 13 Bowers wrote to Burdon that "there is no distinction being made between races, so far as job assignments are concerned," that Negro employees had been "employed on jobs that were previously reserved for white people and several white employees employed on jobs that were formerly reserved for colored employees," and that, although no additional employees had been assigned to the training program, the Company had given assurances that the qualifying requirements for assignment thereto "are not based on color." There is no evidence that any discriminatory practices based upon race existed after March 21, 1962, with respect to job opportunity, transfer, promotion, layoff, or participation in the Company's training program. On the basis of the undenied evidence of record, I find that prior to the "10(b) period" three of the five matters which the complain- ants sought to have the Respondent process as grievances-i.e., that Negroes "are not permitted" (1) to transfer from one department to another, (2) to be upgraded and promoted, and (3) to participate in training programs-were corrected by the Company, and so far as appears no employee, within the "10(b) period" was granted or denied transfer, promotion, or consideration for participation in a training program on the basis of race or color. In these circumstances, it seems plain that since these items of complaint had been resolved more than 6 months before the filing of the charge, there was no necessity or occasion for the Respondent Union thereafter to pursue them with the Company through the grievance procedure. Its failure to do so cannot, in my opinion, be regarded as a rejection of these grievances because the objectives sought to be achieved by those initiating the complaints had in fact been attained when the Company ceased the practices of which they were complaining. Accordingly, I do not further consider the Union's action (or inaction) with respect to these three items as violative of the Act. The remaining two items of the complainants' grievances stand upon a different footing. The claim of the complainants that they be compensated for their period of layoff occasioned by the application of the racially separate seniority system and practices in effect prior to March 21, 1962, was rejected by the Company, and the Respondent Union, within the "10(b) period," made clear that it would not process this claim as a grievance. With respect to the complaint that Negroes were not permitted "to enjoy all plant privileges as are other workers," the record shows that racially segregated restrooms, showers, and lunchroom facilities are still maintained in the plant, and the evidence also indicated that use of the plant golf course is limited to white employees. There is no provision in the collective-bargaining agreement relative to employee utilization of such plant facilities, nor does the record show what policies, if any, have been adopted or are enforced by the Company, except it does appear that at some undis- closed time signs designating restrooms as "Colored" or "White" were removed. The position of the Respondent Union has been opposed to fostering or promoting a program of integrating such facilities. Thus on July 13, 1962, within the limitation period, Bowers on behalf of the Union wrote International President Burdon repeat- ing the views previously expressed in his letter of April 5, namely, "that this local union [has] no intention of supporting a program which would result in colored and white members of this union bathing under the same shower heads or sitting on the same toilet stools unless both parties desire to do so"; he added that "we will actively oppose any such program." The questions, then, are: Did the Respondent Union, (1) by refusing to process through the grievance procedure the claim of the Negro complainants for loss of compensation allegedly occasioned by their layoffs pursuant to the racially discrimi- natory seniority practices in effect prior to the 6-month limitation period; or (2) by declining to foster or promote a program to integrate plant facilities such as rest- rooms, showers, and lunchrooms, "restrain or coerce" employees "in the exercise of the rights guaranteed in section 7" of the Act (8(b)(1)(A)), "cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3)" (8(b) (2) ), or being the exclusive representative of the employees, "refuse to bargain collectively with an employer" (8(b)(3)). For the reasons set forth below, I find that the Respondent has not engaged in any of the unfair labor practices alleged in the complaint. The general principle is now well settled that a labor organization, in its capacity as the exclusive representative of an appropriate unit of employees under the Act, is "the agent of all the employees, charged with the responsibility of representing their interests fairly and impartially." The Wallace Corporation v. N.L.R.B., 323 U.S. 248, 255. As the statutory representative, clothed "with powers comparable to those LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC. 337 possessed by a legislative body both to create and restrict the rights of those whom it represents," it is likewise charged with "the duty to exercise fairly the power con- ferred upon it in behalf of all those for whom it acts, without hostile discrimination against them." Bester William Steele v. Louisville & Nashville Railroad Co. etc., 323 U.S. 192, 203-204. The "statutory power to represent" an appropriate unit of employees and "to make contracts as to wages, hours and working conditions does not include the authority to make among members of the craft [appropriate unit] discriminations ... based on race alone [which] are obviously irrelevant and invidi- ous." Id., at 203. See also Tunstall v. Brotherhood of Locomotive Firemen & Engine- men, et al., 323 U.S. 210; Syres v. Oil Workers International Union, Local No. 23, 350 U.S. 892, reversing 233 F. 2d 739 (C.A. 5); Humphrey v. Moore, 375 U.S. 335. As the Board has stated in Larus & Brother Company, Inc., 62 NLRB 1075 (1945) and later repeated in Hughes Tool Company, 104 NLRB 318, 325 (1953), the Wal- lace, Steele, and Tunstall decisions "give support to many decisions of this Board in which we have said that there is a duty on the statutory bargaining agent to represent all members of the unit equally and without discrimination, on the basis of race, color, or creed" 9 In Miranda Fuel Company, Inc., 140 NLRB 181,10 the Board interpreted the "right" guaranteed employees by Section 7 of the Act as embodying the obligation of fair representation. That guarantee to employees of the right "to bargain collectively through representatives of their own choosing" necessarily encompasses the employ- ees' right "to be free from unfair or irrelevant treatment by their exclusive bargaining agent in matters affecting their employment." The Board then concluded that "Section 8(b)(1) (A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair." Moreover, said the Board, Section 8(b)(2) and 8(a)(3) are also violated "when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee." These principles, argues the General Counsel, are applicable here and compel findings that the Respondent violated Section 8(b)(1)(A), (2), and (3). Relying upon the Board's decision in Peerless Tool and Engineering Co.,ll where the Board held that a union violated Section 8(b)(1)(A) by threatening not to process griev- ances of employees who failed to pay an assessment to the union's strike fund, the General Counsel urges that since "the refusal to process grievances because of the exercise of a Section 7 right constitutes `restraint and coercion' . . . it would follow that the Union's failure to process a grievance for unit employees because of their race would be unlawful." Moreover, and apart from the Section 7 right as defined in Miranda, the contention is made that in requesting the exclusive bargaining repre- sentative to give assistance in regard to a grievance an employee is exercising a Section 7 right, and where the Union's denial of assistance "is based on an improper or `invidious and irrelevant' basis, the Union's conduct is unprivileged and within the prohibition of Section 8(b) (1) (A) of the Act." General Counsel's theory that Section 8(b) (2) has been violated is based upon the Board's rationale in Miranda and Trial Examiner Reel's Decision (now pending on exceptions before the Board) in Independent Metal Workers Union, Local 1 (Hughes 9 Emphasis as in Hughes, a representation proceeding involving a motion to revoke a certification. There the Board majority found that the certified representative, by "requir- ing the payment of $15 and $400 for handling grievances or arbitration involving non- members, has engaged in conduct constituting a clear evasion and abuse of the standard of conduct imposed upon the exclusive representative under Section 9(a) of the Act." The Board's Order therein stated that the unions' certification would be revoked unless the objectionable conduct were discontinued. The minority in the Hughes case, then Chairman Herzog and Member Peterson, in dissent, and without "passing, one way or the other, upon the propriety" of the complained of conduct, expressed the view that revocation of the certification was not "an appropriate method by which to test the legality of that conduct . . . without first determining, through the [then] pending un- fair labor practice proceeding [a charge "alleging this very conduct as a violation of the Act" was then on file], whether or not it actually violates any of the standards which Congress established" in the Taft-Hartley Amendments of 1947. io Enforcement denied 326 F. 2d 172 (C.A. 2).' u 111 NLRB 853, enfd 231 F. 2d 298 (C.A. 7), cert. denied 352 U S. 833; also cited is M. Easkin if Son, 135 NLRB 666, enfd. as to the union respondent 312 F. 2d 108 (C A. 2). 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tool Co.).12 Thus it is suggested that "the Respondent's action (or inaction) in refusing to process the grievance of the eight Negro employees for reasons based on racial considerations in effect caused the continuance of the complained of conditions and constitute a violation of Section 8(b) (2)." With respect to Section 8(b)(3), General Counsel argues that the Union's duty to bargain is a duty owed not only to the employer but also to employees in the bar- gaining unit it represents. Thus it is said that "Respondent did not fulfill its duty to represent all employees fairly when it failed to make an affirmative effort to eliminate the segregation of plant facilities," and its failure "to bargain about these matters fairly and without consideration of reasons which are unfair, invidious, or irrelevant" constitutes a violation of Section 8(b) (3 ).13 Neither General Counsel nor counsel for the Charging Party refers me to any case, nor has my own research disclosed any, in which the Board has interpreted the duty to bargain collectively as defined in Section 8(d) in such manner as to require a find- ing of violation of Section 8(b)(3) when a union fails or refuses , in its capacity as the statutory representative, to handle the grievances of some segment of the con- stituency it represents for reasons that are deemed by the Board to be unfair, irrele- vant, or invidious. Section 8(d) speaks of "the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith"; textually, this language, as well as that in Section 8(b)(3), which states that it is an unfair labor practice for a labor organization that is the statutory repre- sentative "to refuse to bargain collectively with an employer," seems plainly to refer to the obligation owed by the representative to the employer, rather than to the constituency it represents. In the first decided case construing Section 8(b) (3), the Board said: 14 The legislative history of these provisions [8(d) and 8(b) (3)] clearly indi- cates that it was the purpose of Congress to impose upon labor organizations the same duty to bargain in good faith which had been imposed upon employers in Section 8(5) of the Wagner Act, and continued in Section 8(a) (5) of the amended Act.17 Moreover, the standards and tests set forth in Section 8(d), applicable to both employers and unions, closely paraphrase those established in decisions of the Board and the courts in recent years. 17 The conference report, for example, referring to the identical provision in the Senate bill , states: This provision of the Senate amendment imposed upon labor organizations the same duty to bargain which under Section 8(a) (5) of the Senate amendment was imposed upon employers . (H. Conf. Rept. 205 [510], 80th Cong., 1st less., p. 43.) The Board's annual reports have consistently referred to the duty imposed upon employers and labor organizations by Section 8(d) and Section 8(a) (5) and 8(b) (3) as being "a mutual obligation to bargain collectively by meeting at reasonable times and conferring in good faith ...." 15 While it has been suggested that a breach of the duty to represent fairly, in certain circumstances, should be held violative of Section 8(b)(3),16 the same eminent authority states that "[n]either the Railway Labor Act nor the National Labor Relations Act embodies" the purpose to impose on unions designated as exclusive representatives "the affirmative obligation of mak- ing reasonable efforts to abolish racial discrimination . . . desirable as it may be. 32 147 NLRB 1573. In that case, Trial Examiner Reel, in finding that a union's failure to process or investigate the grievance of an employee for reasons based on racial con- siderations violated Section 8(b) (1) (A), (2), and (3), observed: "What is said in Miranda with respect to union action would appear equally applicable to inaction which was founded upon 'arbitrary or irrelevant reasons or upon the basis of an unfair classification.' 13 For a discussion of various aspects of the duty of fair representation, see: Aaron, "Some Aspects of the Union's Duty of Fair Representation," 22 Ohio St. L.J. 39 (1961) ; Blumrosen, The Worker and Three Phases of Unionism: "Administrative and Judicial Con- trol of the Worker-Union Relationship," 61 Mich. L. Rev. 1435 (1963) ; Cox, "The Duty of Fair Representation," 2 Vill. L. Rev. 151 (1957) ; Sovern, "The National Labor Relations Act and Racial Discrimination," 62 Colum. L. Rev. 563 (1962) ; Wellington, "Union Democracy and Fair Representation: Federal Responsibility in a Federal System," 67 Yale L.J. 1327 (1958). "National Maritime 'Union of America etc. (The Texas Company), 78 NLRB 971, 980 enfd. 175 F. 2d 686 (C.A. 2). 15E.g., Twenty-sixth Annual Report (1961), p. 127. 16 Cox, "The Duty of Fair Representation," 2 Vill. L. Rev., 151, 173 (1957). LOCAL 12, UNITED RUBBER, CORK, LINOLEUM, ETC . 339 The union's only obligation, stated colloquially, is to refrain from action which makes individuals and minorities worse off than they would be in its absence." 17 Another writer, however, has concluded that the "duty to bargain collectively, then, probably does not include the duty to represent fairly," since "the context in which the words `confer in good faith' appear gives repeated evidence of concern with the duties of employer and union to each other, but no evidence at all of concern with the duty of unions to those they represent." 18 I conclude that the duty of a labor organization under Section 8(b) (3) to bargain collectively is a duty primarily owing to the employer and does not include an obli- gation to take specific affirmative action on behalf of those it represents. This is not to say that in all situations the manner in which an exclusive representative dis- charges its duty to represent fairly and without hostile discrimination has no rele- vance in assessing whether it has breached Section 8(b)(3). Thus if here the Respondent Union has insisted, as a condition of reaching a collective agreement with Goodyear, that the former racially discriminatory employment practices con- fining Negro employees to certain jobs be embodied in the agreement or continued in practice, it could plausibly be argued that such insistence would be violative of the duty owed the employer under Section 8(b) (3).19 But here the Respondent took no action other than to decline to process a grievance for compensation claimed due for a period of layoff antedating the discontinuance of the racially discriminatory job practices because it concluded, rightly or wrongly, that such a claim could not pre- vail; secondly, it declined to inaugurate, presumably through negotiations with the Company, a program whereby plant facilities would be integrated. Granted that the existence and maintenance by an employer of racially segregated plant facilities are both invidious and repugnant to widely accepted concepts of fairness in employment practices, I think it would involve an undue stretching of the language of this Act to hold that a union that acquiesces in such practices or refuses to seek their eradica- tion in the plant where it is the exclusive representative thereby has refused to bar- gain collectively. I am constrained, therefore, to exonerate the Respondent of viola- tion of Section 8(b)(3), and will accordingly recommend that this allegation be dismissed. As stated above, the General Counsel's theory with respect to Section 8(b)(2) is posited primarily upon the Board's rationale in the Miranda case. The Board major- ity there said that "a statutory bargaining representative and an employer also respec- tively violate Section 8(b)(2) and 8(a)(3) when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification the union attempts to cause or does cause an employer to derogate the employment status of an employee." The General Counsel here urges that by refusing to process the grievances of the complainants the Respondent "in effect caused the continuance of the complained of conditions," thereby violating Section 8(b) (2). In Miranda, the Board majority speaks of a union "taking action against" an employee and, with specific reference to Section 8(b)(2), causing an employer "to affect" or "to derogate" the employment status of an employee. With reference to the individual there involved, the majority notes that the bargaining representative "sought to have Lopuch forfeit his contract seniority" and in fact "caused an employ- ee's contract seniority to be reduced." There is no evidence here that the Respondent caused or attempted to cause Goodyear "to affect" or "to derogate" the employment status of the complainants; or that the Respondent, having been delegated employment authority by the employer, exercised that delegation unlawfully. The ordinary mean- ing of the words "to cause or attempt to cause" would seem to contemplate some action being taken or attempted. Here there was no instigation of or attempt to bring about employer conduct which would affect or alter employment status. At most, the Union unreasonably refused to espouse the claim of the complainants that they were entitled to be compensated for a previous layoff and, being unsympathetic with the complainants' desire to eliminate segregated plant facilities, declined to take any steps to correct these conditions. However much one may deplore the Respond- ent's unwillingness to act, I think it cannot be said that thereby the Respondent has caused or attempted to cause an employer to discriminate against an employee in violation of Section 8(a)(3). I shall therefore recommend that the Section 8(b)(2) allegation be dismissed. 171d, at 156-157. But cf. Sovern, "The National Labor Relations Act and Racial Dis- crimination," 62 Colum. L. Rev. 563, 578-580 (1962). is Sovern, supra, at 588. 'u See N.L R B. v. Borg-Warner Corporation, etc., 356 U.S 342; Sovern, supra, at 589. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We come then to the one remaining issue: whether the Respondent Union's con- duct can properly be said to come within the prohibition of Section 8(b) (1) (A), that a labor organization shall not "restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7." As stated above, the Board's decision in Miranda holds that among the rights guaranteed employees by Section 7 is "the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment," and Section 8(b)(1) (A) accordingly prohibits the bargaining agent from "taking action against any employee upon con- siderations or classifications which are irrelevant , invidious, or unfair." That deci- sion is, of course, binding upon me. Granted that the Respondent Union has the duty, as the statutory representative, to represent the employees fairly, and that the employees have a concomitant right under Section 7 to be so represented, I do not understand Miranda to hold that when- ever a represented member seeks the union's aid in correcting a condition related to his employment which the member may rightly regard as offensive or repugnant to him or a segment of the bargaining unit, the union without more violates Section 8(b)(1)(A ) if it declines to give the requested assistance . As previously observed, the Board in Miranda dealt with affirmative union action that directly and adversely affected an employee's contractual status of employment, and what was found to constitute restraint and coercion was the union's "taking action against" the employee and causing the employer "to derogate the employment status of an employee." There may of course be circumstances in which a collective -bargaining representa- tive's failure to act with respect to or acquiescence in the continuance of a condition of employment, particularly if the condition was brought about by the union's active participation , can properly be viewed as the equivalent of taking coercive action against employees . But I think it would be unduly expanding the scope of the Miranda principle to hold that the Respondent Union's conduct here is tantamount to "taking action against any employee upon considerations or classifications which are irrele- vant, invidious, or unfair." As we have seen above, the Respondent did give consideration to both items of the complainants' grievances that were extant within the limitation period. Opportunity was afforded them to appear before the grievance committee , the executive board, and the membership meeting. The claim for compensation for prior layoffs was regarded as unmeritorious because of lapse of time and the past practice of applying seniority on racial lines; after that practice was abandoned and a nondiscriminatory system was adopted, with the Union's agreement, its refusal thereafter to process this claim and in effect to make the change retroactive does not appear to have been prompted by considerations that are unfair, irrelevant, or invidious. President Bow- ers credibly testified that he "would file a complaint in a minute " if the new seniority policy were not adhered to, because he would "insist on its enforcement to the letter." That the Union refused to sponsor a program , presumably through collective bar- gaining, as requested by the complainants , to integrate the racially segregated plant facilities, and indeed expressed the view that it would "actively oppose any such program," is plain enough. On the other hand, the record shows that "Colored" and "White" signs on restrooms had been removed , and that none of the complainants had been denied, by any representative of the Company or of the Union, the use of facilities because of race. There can be little doubt that plant facilities for the use and convenience of employees are conditions of employment and, therefore, a proper subject of collective bargaining . I think it equally clear, however, that while union sponsorship of a program of "separate but equal" plant facilities would appear invidi- ous and racially discriminatory, nonetheless a wide range of discretion must be allowed the statutory representative in determining the demands to be made and when to make them. Considering these factors, and the fact that nothing in the collective-bargaining agreement dealt with use of plant facilities , I am persuaded that the Union's refusal to embark upon a program to integrate plant facilities cannot be found to have restrained or coerced employees in the exercise of Section 7 rights. Therefore, I shall recommend dismissal of the Section 8(b)(1(A ) allegations of the complaint. Having found that the Respondent Unison has not violated the Act in any of the respects alleged in the complaint , I will recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, I make the following: CONCLUSIONS OF LAW 1. Goodyear Tire and Rubber Company is engaged in commerce, and in activities affecting commerce, within the meaning of Section 2(6) and (7) of the Act. THE WM. H. BLOCK COMPANY 341 2. Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety. The Wm. H. Block Company and Local 512, Retail , Wholesale and Department Store Union , AFL-CIO. Case No. f25-CA- 1738. December 16, 1964 DECISION AND ORDER On February 7, 1964, Trial Examiner A. Norman Somers issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of the complaint with respect thereto. Thereafter, the Respondent filed exceptions to the Decision and a brief in support thereof, and the General Counsel filed a brief in support of the Decision. 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, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations 1 of the Trial Examiner. The Trial Examiner concluded that (1) even if the Employer's rule against union solicitation by employees during working time was presumptively valid, this presumption is rebuttable; (2) the elements present, including the fact that the Respondent took no action to prohibit other types of solicitations but immediately prohibited oral solicitations on behalf of the Union, showed that the rule was directed against union organization and not to the protection of the proper use of working time; and (3) because its adoption was motivated by antiunion consideration the presumption was rebutted and the rule was invalid. The Respondent contends that neither motive nor dis- parate enforcement is material, because under the Supreme Court's 1 The Trial Examiner' s Recommended Order and the Appendix are modified so as to conform to the allegations of the complaint . The General Counsel's theory of the case, as indicated by the complaint , was that only the oral rule against union solicitation, allegedly promulgated on or about March 29, 1963 , and limited to the Respondent's serv- ice building, was invalid. 150 NLRB No. 30.