The Emporium

THE EMPORIUM 173 The -Emporium and Western Addition, Community Organization. Case-20-CA-5304 July 22,, 1971 DECISION AND ORDER On October; 20, 4,969i Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding,, finding that Respondent had not engaged in the unfair- labor practices alleged in `the complaint and recommending that the complaint be dismissed in ,its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examin- er's, Decision together with supporting briefs; and Respondent filed cross-exceptions to the Trial Exam- iner's Decision and in opposition to the General Counsel's exceptions together with a supporting brief.' - On' December 14, 1970, the National Labor Rela- tions Board having determined that the instant case raised issues of substantial importance in the adminis- tration of the National Labor Relations Act, as amended, notified the parties that oral argument on the case would' be heard by the Board oil January 4, 1971. All parties participated in the oral argument which was substantially held on-the aforesaid date. The Board- has-'reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby ' affirmed. The'Board has considered the Trial Examiner's Decision, the exceptions and briefs, the oral`-argument, and the entire record in the case, ad hereby,adopts the findings, conclusions?' and recom- mendations of the Trial Examiner. ORDER Pursuant to Section, 10(c) of the National Labor Relations Act, as 'amended; the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that 1 Amici curiae briefs were filed by the Department Store Employees Union Local 1100, Retail Clerks International Association , AFL-CIO, the National ,Association for the Advancement of Colored People, and the Equal Employment Opportunity. Commission. Respondent also filed a brief in reply to the amid briefs., 2 Unlike our dissenting colleague, Member Jenkins, we conclude that the,-record -before us neither requires nor-allows findings as to two matters which,were not alleged or litigated but which, nevertheless, are assumed as facts and supply the foundation of his dissent, specifically : (1) that Respondent was engaged in a pattern or practice of racial discrimination, and (2) that the Union's efforts to remedy that supposed discrimination were so' limited that the Union breached its duty of fair representation and should forfeit -its status as the exclusive representative of employees in the bargaining unit. Furthermore, since those issues were not litigated, any factual findings with respect to them could not properly be-made upon this record. Thus the -sole issue presented for decision on this record is,whether the, conduct of the discharged employees was unprotected because in derogation of the duly designated exclusive bargaining representative. For 192 NLRB No. 19 the complaint be, and it hereby is,, dismissed in - its entirety. MEMBER JENKINS, dissenting: - Respondent, The Emporium, operates a department store in the San Francisco area. has a ,collective- bargaining agreement, with, the Union, containing a clause prohibiting racial discrimination. ,.Respondent discharged two Black employees for-orderly picketing and leafletting of Respondent's store in protest of alleged' racial discrimination `respecting, promotions and other terms and conditions of employment. Over-6 months before the picketing and leafletting began, the Union had -alleged The Emporium 'had violated the nondiscrimination-clause, and had sought to pursue individual cases-of alleged discrimination through the -grievance and arbitration procedure established by the collective-bargaining agreement. Some employees, including those dischar'ged,-consid- ered that the alleged' discrimination problem affected all black, brown, yellow, and red employees. The objected to the Union's limiting grievances to-iridivid- ual cases as'being too slow, narrow, and ineffective as a remedy, and asked the Union to seek grievance adjustment; and arbitration if necessary, of the broad question of all phases of discriminatory treatment; of all; Black and other minority employees. The Union declined,, and the picketing and leaflettiiig resulted. The question thus- presented is whether concerted activity by employees protesting; the existence of all forms' of alleged' racial discr`imination' . loses its protection under the Act because the Union repre= senting the employees has takena position in support of eliminating some,' but not all, phases-of the alleged discrimination.3 The Trial Examiner found that the picketing and leafletting lost its protection,' primarily for- two reasons: (1) The Union is the exclusive-representative of the employees under the Act; the Act entitles: the Employer to -deal only with -the Union-rather-`than bargain on two fronts; thus" the picketing and leafletting undermined the Union's` exclusive`,repre- sentation of the employees; and (2) the Union had the reasons stated by the Trial Examiner, we agree that the actions of the discharged employees in abandoning the contractual grievance procedure and seeking to initiate 'direct negotiations with Respondent by'picketing and-boycott activities were not protected by the Act 3 It will be noted, contrary to the statement, in fn. 2 of -the majority opinion, that I have set forth the facts as involving "alleged" discrimination, and have refrained from any indication of the merit (or lack of it) in the protesting employees' assetions that Respondent engaged in racial discrimination. If the employees were of the opinion that-such discrimination existed, and protested, this suffices (in the absence of additional factors such ,as those subsequently considered in the text) to make their activities concerted and concerned with terms and conditions of their employment, and thus brings such activities, within the protection, of Section 7. It is on this principle, and on these facts, that-my:subsequent analysis and discussion is based-as I had thought was clear. While it would make no difference in my,conclusions whether the Union agreed,or disagreed with the protesters, I note further that the Union also was of the opinion that Respondent practiced racial discrimination. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made `substantial- and good-faith efforts to achieve an orderly solution to the problem within the collective- bargaining processes.4 Neither, ofthese reasons withstands scrutiny. The, union'sri ht to-be the exclusive representative of the' empld' ees " originates in, the principle' of collective';barg' fining established 'by the Act.' This .principle requires that' the"' representative' of , the employees present a ;single set of demands. or goals covering :,ail' employees,.andthat -whatever bargain is struck, with the . representative by the employer be applicable_to all employees, so that the employer need bargain neither with. splinter groups of employees nor ,with individual employees, and may not. undermine tkie, ,union by. do ing_ so. This ix,turn. implies that the union must have the power to balance, and adjust the legitimate competing cfaims, <within the employee groups, and that whatever adjustment is arrived at fairly by the- union and its membership forecloses individual or splinter-group, assertion of conflicting positions., It was these considerations,of balances, adjustment; and exclusivexepresentation which the Trial ,Examiner!-applie'd, to find that the leaf letting and picketing here were„unprotected. This application rests upon a,serious misconception. 11 1' Union action=,'preempts or, -,forecloses _, individual employee ,action only, Pin' those cases- where the balancing of competing legitimateinterests of employ- ees is involved. In,the case of racial discrimination, no such balancing is permitted. A union cannot permit a little, or -a -lot, , of racial discrimination against one group,in_order to obtain something in a differentarea from the employer; for a different group of employ- ees. Such ,`balancing" has been, unlawfulsince Steele v,.Louisville & N, ashville Railroad Co., 323 U.S. 192,. In_ Steele,the, Supreme , Court,,held, that a collective- bargaining,',agreement entered into between the employer and, the union. was unlawful .to theLextent it discriminated against Black', employees on , racial grounds. The Court reasoned as follows: If as the state court has held, the Act confers this power [of exclusive representation free from any ,challenge by those represented] on the bargaining representative: of a craft, or class of employees without any commensurate statutory duty toward members, constitutional `questions arise. For '-the represeintative,is clothed with power not unlike that of a- legislature which is subject to 'constitu- 4 The third ground relied on bythe` Trial Examiner, that the discharged employees 'were only "self=styled" representatives 'of others, `does not warrant further consideration here, for it is plain the activity was concerted and related to conditions of °employtnent. I'do not suppose my `colleagues to rely on `this ground. The Trial'Examiner's'mference that the protesting employees, by seeking a meeting with the-Employer's president-were thereby seeking to "bargain" fbr' all minority employees apart from the Union appears unfounded. Their desire to talk to Respondent's -president 'far from `evincing a' desire to tional limitations on its power to deny,- restrict, destroy or discriminate against 'the rightsF of? those for whom it legislates and which is also under an affirmative constitutional duty equally to protect those rights. If the Railway Labor Act purports to impose on'petitioner and- the -other, Negro mem- bers of the craft the legal duty to comply with the terms of a contract whereby the representative-has discriminatorily restricted 'their employment for the benefit and advantage of then Brotherhood's own members,--we must decide-the constitutional questions which, petitioner raises in his pleading. But we, think that Congress, in enacting the Railway Labor Act and authorizing a labor union, chosen by, a -majority, of a- craft, to represent the craft, did not intend to confer plenary power upon the- union to sacrifice, for the benefit of., its members, rights of the minority ,of the craft, without imposing on it any duty to protect the minority. [323 U.S. at 1.98-19% emphasis supplied.] We think that the Railway Labor Act imposes upon the statutory representative of a craft atleast as exacting a duty'to protect equally the interests of the members of,the craft as the Constitution _ imposes upon a legislature to give equal protection to the interests of those for whom it legislates. Congress has seen,, fit to clothe the bargaining representative with powers comparable to those possessed by ,a legislative body both,, to, create, and restrict the rights of those whom it represents, cf. J. I. Case Co. v. N.L.R,B.,,supra,,335, but it has, also imposed on the representative a corresponding duty. We hold that the language of the Act to which we have referred, read in the light of the ,purposes of the Act, expresses the aim of, Congress to impose on the bargaining representative of .a craft or class of employees the duty to exercise fairly the -power conferred upon it in behalf of all those for whom it acts, without hostile discrimina- tion against them. This does not mean that the statutory represent- ative of a'craft is barred, from making' contracts which may, have unfavorable effects on some , of the members of the craft represented. Variations in the terms, of the contract based, on, differences "bargain," merely reflected a traditional , opinion shared by Blacks and often enforced by actual experience that only the president or ;`boss" of the company can effect permanent `solutions to problems involving racial discrimination. Apart from this consideration, there is no rule of law which requires an employee to adjust his grievance 'with' a lowerfranking official or which transforms 'a grievance when "presented to' the,president of a company into `collective bargaining. Nor is there any season why a grievance may not pertain' to a group rather than an individual complaint and accordingly be resolved on a group rather than an individual basis. THE EMPORIUM 175 relevant to the authorized purposes of the contract in conditions to which they-are to be applied, such as differences in seniority; the type of work performed; the competence and skill with which it is performed, are -within the scope of the bargain- ing-representation of a craft, all of whose members are not identical in their interest or merit. [Citations omitted.] Without attempting to mark the allowable limits of differences of`conditions to which they apply, it is enough for present purposes to say that the statutory-power to-represent a craft and -to, make contracts as-'to, wages, hours and working conditions does not include the -authority to make' among members of the craft discriminations not based on such relevant differences. Here the discriminations based on ` race alone are obviously irrelevant and invidious. Congress `plainly did not undertake to authorize the bargaining representative to make such discriminations. [Citations omitted.] The representative which thus' discriminates may be enjoined from so doing; and its members may be enjoined from taking the benefit of such discrimi- natory action. -No more is the Railroad bound by or entitled'to take the benefit of a contract which the bargaining `-representative is prohibited by the statute from`"making. In both cases the right asserted, which is- derived from the duty imposed by the statute- on 'the bargaining representative, is a federal right implied from- the statute and the policy which ithas'adopted. It is the federal statute which eonde'ms as unlawful the Brotherhood's conduct-. [323 U.S. it, 202204, emphasis supplied.] These principles, though first enunciated-in Railway Labor Act cases,- are, equally applicable under the National Labor Relations Act. Ford Motor "Company v. Huffman, 345 -U.S. 330: In so holding, the Supreme Court stated: - The National Labor Relations Act, as passed in 1935 and as amended in 1947, exemplifies the faith of Congress in free collective bargaining between employers and their employees when conducted by freely and fairly chosen representatives of appropriate units of employees. That the authority of bargaining ' representatives, however, is not absolute is recognized in Steele v. Louisville & N. R. Co., 323 U.S.-'192, 198-199, in connection with comparable provisions-of the Railway Labor Act. Their statutory obligation to represent all mem- bers of an' appropriate unit requires them to-make an honest effort to'serve the interests of all of those members; without hostility to any. Id., at 198, 202-204; - Tunstall v. -Brotherhood of Locomotive Firemen, 323 U.S. 210, 211;' Brotherhood of Railroad Trainmen v. Howard, 343, U.S. 768.E [345 U.S. at 337.] - The principles of, Steele have been uniformly followed, refined, and broadly applied in a- long-line of cases since then, including 'Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210; The Wallace Corporation -v. - N.L.RB., 323 U.S. 248; 255-256; Graham v. Brotherhood of Locomotive Firemen & Enginemen; 338 U.S. 232; -Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768; through Humphrey v.-Moore, 375 U.S. 335, to its latest expression in Vaca v. Sipes, 386 U.S.' 171. These cases all make it clear that a union's obligation under this Act is to refrain from actions which permit discrimination on arbitrary or' invidious grounds. This duty- to "refrain, as explicitly stated in Steele, includes' the duty- not" -to engage in, permit, or tolerate provisions in bargaining agreements, or practices - -under , or outside such agreements, which constitute or permit such invidious discrimination. It follows from this that whenever union conduct-falls short of this obligation, it cannot preempt or foreclose the concerted action of employ- ees, outside the collective-bargaining' relationship, directed toward doing the very thing which the union itself is obligated to do. If this were not so, we would face the grave constitutional questions concerning the validity of the union's representation which the Court rioted in Steele. As this- Board pointed out in Tanner Motor Livery, Ltd., 166 NLRB 551, the union is-required, by its duty of'fair representation and-by constitutional considera- tions, to support the elimination of racial diserimina- tion; consequently, the protest of racial discrimina- tion in employment' cannot be in opposition to or at cross-purposes with the union's position. As, the Board there held: - [T ]he Board cannot ' presume or conclude that, contrary to the course being urged'by Abramson and Dorbin, the Union knowingly would, have taken the unlawful position that it would refuse to represent Negro drivers fairly if hired. Rather, we must assume that these employees were acting in accord with, and in''furtherance of, the` ;lawful position of their collective-bargaining' agent. For the Board to find, therefore, that the employees' otherwise protected concerted activities herein were rendered unprotected by virtue of an{existing collective-bargaining agreement between the'-Un- ion and the Respondent would be offensive to public policy. [166 NLRB at 551-552; footnotes omitted.]5' 5 The Ninth Circuit, in remanding Tanner, did so on the ground that the demand that the Union pursue the broad overall grievance and it was only protesting employees had not first sought to pursue their cause through the after the Union declined to do so that they began the picketing and union, 419 F.2d 216. In the ' present case the employees did request or leafletnng. The court left standing the Boards finding that employees who (Continued) 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To hold otherwise would permit a union to control ,the= scope, direction, pace, and degree of elimination of racial discrimination, of which any voluntary tolerance by the union breaches its duty of fair representation. The only permissible collection bar- gainingaconcerning racial discrimination is its elimi- nation. i,No court'has permitted the existence of a.collective- bargaining agreement to stay its hand in ordering an employer, to ,eliminate-.discrimination. Further, em- ployers can unilaterally change existing collective- ,bargaining agreement provisions which have discrimi- natory effects and may -do so free from the threat of a strike. See V .,S. -v. Local 189, Papermakers, 282 F.Supp.39, 42-44 (E.D.La., 1968). As to discriminato- ry practices, which are not derived from or are not inherent .in the , collective-bargaining agreement, employers are-,not only free, unilaterally to eliminate ,Such discrimination, but are dutybound to do so. They, cannot: be, heard to protest,that=their failure to eliminate discriminatory practices, or to treat with employees who concertedly protest .such practices .is in,derogation.oft the ,exclusive representative status of the, union.- Nor may-, they shift their responsibility under the national. labor policy to eliminate all racial discrimination to the union by making, such, illegal discrimination a matter solely within, the jurisdiction of, a grievance-arbitration; procedure, thereby placing the burden largely onl 'the union and providing themselves with a ready defense to, any and all concerted activities- by their employees to directly eliminate discriminatory practices. If a union position in.favor- of the-elimination of ,some but not all racial discrimination can foreclose concerted employee activity to, remove all racial discrimination, collective bargaining on this subject is converted from a shield protecting employees- against racial discrimination into a=sword by which such protection can be cut down or cut. back. As the, Court held in Graham v. Brotherhood of,Locomotive Firemen.&Enginemen, 338 U.S. 232, 239, the Railway Labor Act imposes upon the [union ] the duty to represent all members of the [unit] without discrimination and invests"a racial minority of the [unit] with the right to enforce that duty. [Emphasis supplied.] Steele, supra,, ', held that the members of the union "may be, enjoined from taking' the benefit of [the] discriminatory,.action" and the employer is not ",entitled to ,take the, benefit" of the discriminatory practices, and, Graham, ,- supra, r held that the act "invests a racial minority' of the [unit ] with the right to enforce that duty" of fair representation. Thus the engaged in concerted protests of an employer's racially discriminatory practices were entitled to the protection of Section 7 of the Act. " In 'the recent case of Washington State Service Employees State Council No. l$ 188 NLRB No. 141, this Board held that the protection accorded to victims of-discrimination have a right under-the Act to sue-both the employer nand their union in order, to end the discrimination. If union inactivity to-end discrimi- nation cannot cause such extreme measures by the employees to, lose - them the protection, of the Act, plainly that protection cannot be lost,by the employ- ees' efforts at persuasion here. _ - Accordingly,, the, principle of exclusive representa- tion by the union -cannot, preclude the picketing, and leafletting the employees.engagedin here, nor deprive such activity of protection under the Act. -1 1 It is the Board's apparent inability to retain a grasp on these principles which led the Supreme Court, in Vaca.,v. Sipes, 386 U.S. 171, to, hold that. the Board does not have preemptive jurisdiction over, breaches of the. duty- of, fair, representation and that the, courts retain concurrent jurisdictaipn over such violations of this statute. In explaining ii,;reason for such conclu- sion, the Court stated that should this Board be, found to have preemptive jurisdiction the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review. of his complaint, since the Board's General Counsel has unreviewable discretion to refuse to institute an, unfair labor practice complaint [citations - omitted]. The exist- ence of even a, small group of cases, in which the Board would be unwilling or unable- to, remedy a union's breach of duty would frustrate the basic purposes underlying the duty, of fair representa- tion doctrine. For these reasons, we cannot assume from the NLRB's tardy assumption of jurisdiction in these cases that Congress, when it enacted N.L.R.A. § 8(b), in 1947, intended to oust the courts of their' traditional jurisdiction to curb arbitrary conduct by the individual employees' statutory representative.'' [396 U.S. at 182-183; emphasis supplied.),, In addition to having made a "tardy assumption" of its responsibilities in this area in the past, the Board here,, by holding- the concerted conduct of , the employees to be unprotected and thus sanctioning their -discharge, places itself in the position of participating in, and aiding and, abetting the continu- ance of, those phases,of racial discrimination which the Unon elected not to try to remedy. In Independent Metal Workers , Union, Local No. 1 (Hughes Tool Company), 147 NLRB ' 1573, the Board stated th at it "cannot validly render aid under Section 9 of the Act" to a labor organization which discriminates racially. Yet here, the Board as an organ of the Government, by withdrawing' its protection from these, employees such protests in Tanner Motor extended even to protests which occurred outside the unmediate employer-employee relationship., As this recent decision clearly demonstrates, the right to engage m such activities stands on a different footing from the collective-bargaining relationship. ' - THE EMPORIUM 177 who are protesting racial discrimination , is breaching its constitutional and statutory obligation not to aid or permit such discrimination . Brown v. Board of Education, 347 U.S. 483; Shelley v. Kraemer, 334 U.S. 1. The Trial Examiner also relied upon the Union's good-faith efforts to achieve an orderly solution to the problem within the collective-bargaining relationship as a- ground for finding that the concerted activity outside union channels was unprotected. This position misconceives the problem. The ques- tion is, not whether the Union moved as vigorously or as effectively as it reasonably could have. It may have done so. The Employer's economic power and the desire to retain economic benefits of racial discrimi- nation may, impose severe limitations on a union's ability to rake progress on this front. Indeed, there is no intimation -in, this case that the Union had the ability to do Substantially more than it had under- taken to do; and the Employer's prompt retaliation by discharging the -picketing ; ppd leafletting employees suggests that_ perhaps the Union may have been exerting the full range of its power and ability to eliminate racial discriminations The, union's, own judgment of its capabilities with regard to the pace and scope of eliminating the discrimination may result from its own fair estimate of the realities 7 and in that sense may not, be grounded in bias or hostility. But the absence of subjective bias or animus is irrelevant to the duty of fair representation, and it does not follow from the absence of hostility by the union that the employees cannot-themselves then take action under the protec- tion of the Act -in support of the complete elimination of racial discrimination. The right to be free from racial discrimination in employment does not arise solely from this, statute creating union representation but, as Steele held, is in substantial part based upon the Constitution which requires the exclusive repre- sentative under this Act to refrain from tolerating racial discrimination respecting terms and conditions of employment. In :this respect, it is analogous to the 6 The reverse, of course, may also be true, with the union rather that the employer exercising the greater power and resisting the elimination of discrimination. The existence of racial discrimination does not automatically imply that both the union and employer have committed violations of the Act, though this may be true in some cases. The issue can be resolved by charging both with violations, ascertaining through the hearing process which was the responsible party, and holding it liable for the remedy. The preceding portion of this footnote and the paragraph in the text to which this note is appended make it plain, contrary to the statement of the majority in fn. 2, that I make no assumption that the Union here has breached its duty of fair representation; rather, the reverse is true. The further statement in fn. 2 that I also assume or infer that because of this breach the Union should forfeit its status as bargaining representative is gratuitous. I have suggested no such proposal, either explicitly or implicitly. 7 It hardly follows from this, of course, that the Trial Examiner was correct in his conclusion that the Union was in fact "endeavoring in every employer-'s freedom of speech to oppose unions, or the union's freedom of -speech in handbilling:- There ,are some respects in which it cannot be circumscribed or limited by the Act or by this Board. One of these is ;the freedom from limiting the protection of the -Act by union preemption through the union's assertion of a lesser opposition to racial discrimination than the protesting employees assert. If the employeesy cannot engage in concerted activity to eliminate racial discrimination entirely after the union has declined to try to do so, a union interested in retaining discrimi- nation can preempt the field by moving -only at' a snail's pace, or in token areas.- - , Finally, the doctrine enunciated by the Court in Steele has been embraced by the Congress in, the enactment of Title VII of the Civil-Rights Act of 1964, so that the national labor-policy itself specifically forbids racial discrimination in the terms and condi- tions of employment, and,-its existence is unlawful.s The Act we administer-must be read consistentlywith other Federal statutes- which establish the national, labor policy. Textile Workers Union , of America, AFL-CIO v. Lincoln Mills, 353 U.S. 448, 456-458. To withdraw the protection of this Act from these employees whose concerted--protest was -in further- ance of the national labor policy, merely because their Union stopped short of assuming its full obligations under the statute, is contrary to the express purpose of Congress and to the national policy,itself, - - Consequently, the, employees' handbilling and leafletting remained concerted activity and protected under Section 7 of the Act, and the discharge Hof, the employees for, such activity violated Section,8(a)(1). Accordingly, I think we are required to reverse the Trial Examiner and find the discharges to be unlawful. - MEMBER BROWN, dissenting; I agree with Member Jenkins,- though not with his rationale in its entirety, that Respondent violated, Section 8(a)(l) of the Act by discharging two employees, Hawkins and Hollins, who engaged in orderly picketing to protest alleged, discrimination, way available to it under the agreement to adjust any 'and all cases of racial discrimination brought to its attention." The record shows an unexplained time lag between May and September when, the Union apparently did nothing. At the May meeting, the disenchanted employees ,asked for a delay only until the return of employee Young who , was about to- go on vacation. In addition, there is no evidence that the Union actually, investigated the merits of the numerous complaints Johnson received from approximately 40 employees who attended the April 3 meeting. -indeed, there, is evidence in the record that throughout 'the summer various; employees expressed to Johnson frustration at the delay and implored him to take action. It is apparent that the delay engendered suspicion of the motives of the Union and that the frustrations built up duringgthe-summer months contributed to the discriminatees' resort to the activities for which they were discharged. 6 Section 704(a), 42 U.S.C. § 2000(e)-3(a). This act establishes additional govvernmental agencies and procedures for carrying out- this policy, but of course does not relieve this Board of its continuing responsibilities. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against -minority group' employees ^ with respect , to terms^and conditions of employment. The Respondent, a member, of a multiemployer group, is signatory to a collective-bargaining agree- ments' with Department, Store Employees Union. Section21(E) thereof provides: No person shall be discriminated against in regard to 'hire; 'tenure of employment or for status by reason of race, color, creed, national origin, age or sex_ ..- and section 5(B) reads: Any act of any employer, representative of the Union or any employee ,that is interfering with the faithful-,performance of this agreement-may be referred to, -the Adjustment Board for such action as^ -the Adjustment Board deems proper, and is ,permissivewithnnthis agreement. The agreement also provides, for no-strikes or lock- outs and 'other sections detail the composition and functions of the Adjustment Board and provide for arbitration where an impasse -is 'reached between union and management representatives appearing before the Boar"d. In April 1968, itbecamean "official" postion of the Union that-'Respondent was discriminating against employees` ' of minority races, especially 'against Negroes and older' employees. It so informed the Respondent. Nothing came of the complaint. In time, and, after further discussion with minority group governmental and other interested employees' and'' agencies, it-was agreed that the Union would take whatever steps necessary, including arbitration, to adjudicate 'the employees"grievances. Accordingly, on September 4, the Union formally charged the Respondent with breach of sections 21(E) and 5(B) and asked for an Adjustment Board meeting, al- though it was prepared to proceed to arbitration if the Respondent were willing. The Union'''s' attempt to adjudicate the grievances on an individual basis 'met with objections" from Hawkins' ,and Hollins and other employees. They desired the matter,to be presented as an issue affecting all employees, and insisted on meeting with Respon- dent's president. It is not clear whether the employees in attendance were only those whose grievance the Union was prepared to prosecute then. In any event, the . meeting apparently terminated when Hawkins, Hollins, r and., the other employees walked out.9 However, as"the result of the Union's representations one employee, who had complained about, discrimi- nation in the past, was promoted and one i other 9 'Anther meeting of the Adjustment Board was -held without the presence of employees who walked out but what , if anything, ',resulted therefrom is not indicated. 10 1 agree with the Trial Examiner that there is no basis for drawing an employee was- said to have benefitedfrom the Union,,<'s intervention., The efforts of Hollins to meet with Respondent's president, to present his views-and to' discuss what was happening among minority employees were unsuc- cessful. On November 2, Hawkins,- Hollins; and at least , two other employees', began picketing the Emporium. The picketing was on the employee'sW 'own time, `it was orderly, and was accompanied by the distribution of,pamphlets which called on the "public to `boycott Respondent because of its alleged racial policies. The Respondent followed with a warning"to the 'employees that their charges were untrue, their activities injurious to the Respondent, and that -they could be discharged if=these' activities continued. When a week ^ later' the, employees again picketed, the store, Respondent discharged` Hawkins aiTd-Hollins. The ` reason E assigned' was, the 'distribution, rof, , the boycott pamphlets 'on, November 9. The Union thereafter- protested the discharges to the= Respondent; although it was not the =one to°file,thecharge'in the instant proceeding. It was -neither charged nor Mound that the Respondent had infact discriminated against it minority employees. The General Counsel maintained` that 'the employ- ees had reasonable grounds forbelieving that di°scrim- in'ation existed, and the Trial Examiner found: that because of the "official" 'position ' adopted by the Union, of which the two employees had' knowledge, Hawkins and Hollins' acted in a good-faith belief'that Respondent was practicing discrimination'0 ' r The Trial Examiner acknowledged- that "concerted employee activities with an objectt' of- bettering the working conditions of e i n p l o y e e s b e l o n g i n g torn , un on- ty groups ... `are ' protected under-the °Act is hardly open to challenge," and' that, unlike the-'situ ation'in Tanner 11 there°is no evidence that the picketing had as an object the hiring of minority group employees. In dismissing the 8(a)(1)' allegation of the complaint, however, he concluded that the employees had, nonetheless, 'lost ` the protection ofthe Act because their activities amounted to, in `short, no less than a demand, that the. Respondent bargain, with , , the picketing employees for the entire group,of minority employees on terms and conditions of employment., I find, ,however, that the Trial- Examiner miscon-, ceived the nature of ' the employees' , concerted activities. There is nothing in the evidence, on which the Trial Examiner relied, indicative of a,purpose, to "negotiate" with Respondent's president on anyterms or' conditions' of^ employment. All'that is shown isthat I-lollins told, Batchelder he wanted to ,`,`discuss what inference that the Respondent discriminated against the, employees, on racial grounds. Nor would I find that the Limon on its part breached its duty of fair representation. 11 Tanner`Motor Livery, Ltd,148NLRB 1402: THE EMPORIUM 179 was happening among minority employees," that the employees picketing would be ,satisfied with nothing less than a meeting with him, that they wanted to "talk to the top management to get better conditions for the Emporium,"and that theywere seeking too accomplish their objectives through "group talk and through the president if we could,talk to him." Granted that the employees were seeking "better conditions" and a meeting with Respondent's president for that pur- pose, it is nonetheless apparent that what the Trial Examiner conceived as a demand for bargaining for the minority employees was, no more than an effort on the part of those seeking the meeting to urge upon the president to .use his good offices to see to it that the alleged discriminatory treatment of the minority employees, which both the employees and the Union believed in fact existed, and was in violation of an express provision of the contract, was corrected. Such a course-was unquestionably open to the Respondent to take without in any way infringing on the Union's status as the recognized bargaining representative.12 Indeed, it was an obligation imposed upon Respon- dent not only by the contract's nondiscrimination provision, but by the mandate of Title VII of the Civil Rights Act of, 1964.13 Moreover, it is equally clear from the enactment of Section 9(a) that it was not congressional intent- that the mere submission of a grievance by an employee was to be considered in derogation of the rights of employees to bargain through their chosen representative. There is not a scintilla of proof that the picketing employees wanted discussions leading to agreements on new conditions of employment, or even a modifi- cation of-existing-ones, or even to effect a compromise of the grievances. -In short, the employees did not picket Respondent for the purpose of negotiating an agreement but simply to urge Respondent to take action to correct conditions of racial discrimination which the employees reasonably believed existed at the Emporium. In fact, insofar as this record shows, the picketing employees sought only a simple confer- ence to call attention to their situation; it is not even clear that they intended to present a formal grievance. I cannot see how on the tenuous evidence present in this case, the majority can find that "to extend the protection of the Act to the two discharged employees would seriously undermine the rights of employees to bargain collectively through representatives of their own choosing." I find no ground justifying the discharges of the two employees for engaging in concerted activity within the meaning of Section 7 of the Act.14 I would reverse the Trial Examiner, find the 8(a)(1) violation, and grant the appropriate remedy. 12 Section 9(a) of the Act. 13 The Supreme Court cited in Southern Steamship Company v. N.L.RB., 316 U.S. 31, 47, that the Board may not ignore other and equally important congressional objectives . In enacting the Civil Rights Act of 1964 Congress expressed its deep concern that the invidious practice of discrimanation in employment based on racial grounds be eliminated. And such has similarly been the concern of the judiciary. (See Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192.) It is not, of course, the Board's function to enforce provisions of the Civil Rights Act, but I think it is incumbent on the Board, when presented with an issue involving racial discrimination in employment, that it should not lightly-condone disciplinary-action against employees engaged in concertedly protesting alleged discrimination because of race unless the concerted conduct involves a most serious breach of the policies underlying our own Act . Such is not the case here. 14 The Trial Examiner did not find, nor would I, that the language used by the employees in their appeal to the public was so intemperate as to deny them the protection of the Act . (See Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 63 (1966). Peftway v. American Cast Iron Pipe Company, 411 F.2d 998, 1007 (C.A. 5, 1969).) Nor do I find meet in Respondent's contention that the employees' conduct was sufficiently disloyal to make such conduct unprotected activity. The picketing was conducted on the employees' own time and there was no withholding of services and no request that other employees do so. The pamphlets did not attack the quality of Respondent's goods Or services but only the discriminatory conditions of employment it was believed prevailed. See Edir, Inc., d/b/a Wolfie's, 159 NLRB 686. TRIAL EXAMINER'S DECISION WILLIAM E. SPENCER, Trial Examiner: The complaint in this proceeding, dated March 4, 1969, based on a charge duly filed on November 19, 1968, alleged in substance that the Respondent herein, in violation, of Section 8(a)(1) of the National Labor Relations Act, hereinafter called the Act, discharged two of its employees, Jim Joseph Hollins and Tom Hawkins, because of their protected concerted activities. Respondent in its duly filed answer denied the said allegation. A hearing participated in by all parties was conducted before me in San Francisco, California, on April 8, 1969, and on or before May 15, 1969, each of the parties filed a brief. Upon the entire record, my observation of witnesses, and upon consideration of the excellent and helpful briefs filed with me, I make the following: FINDINGS OF FACT - I. THE BUSINESS OF THE EMPLOYER Respondent, a California corporation engaged in the operation of retail stores in the State of California, during the past year in the course and conduct of its business operations made gross sales in excess of $500,000 and purchased and received goods-valued in excess of $50,000 directly from outside the State. This proceeding is directly related to the operation of its San Francisco department store, The Emporium. II. THE LABOR ORGANIZATION INVOLVED Department Store Employees Union, called the Union hereinafter, is a labor organization which at all times material herein was the exclusive representative of Respondent's employees in an appropriate unit at its San Francisco store, The Emporium. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue , This is a discharge case brought under Section 8(a)(1)_ of the Act. On November 11, 1968, The Emporium, a leading San' Francisco department store, after a written warning, discharged two of its employees, Tom Hawkins and James Joseph, Hollins, both Negroes, when for a second time they picketed the store on their-own time, both,times calling for a boycott of the store-by a minority, race on the ground that the store was "racist." B. Respondent's Bargaining Agreement At all material times the Respondent was a member of a multiemployer group and as such signatory to a collective- bargaining agreement with the Union. No question is raised as to the validity of the agreement or the status of the Union as exclusive bargaining representative of Respon- dentemployees in an appropriate unit. This agreement provides, inter alia: Section 36(A), "There shall be no strike or lockout during the life of this agreement." - Section 21(E), "No person shall be discriminated against in regard to hire, tenure of employment or job status by reason of race, color, creed, national origin, age or sex." Section 5(B), "Any act of any, employer, representative of the Union, or any employee that is interfering with the faithful performance of this agreement . . . may be referred to the Adjustment Board for such action as the Adjustment Board deems proper, and is permissive within this agreement." Section 36(B, C, D, E, F) contains a detailed description of the functions -of the Adjustment Board, its composition, and provisions for arbitration where an impasse is reached between union and management representatives appearing before the Board. C. The Issue of,Racial Discrimination Walter L. Johnson, chief executive officer of the Union, testified credibly that after discussions with employees in April 1968, it became the "official" position of the Union that discrimination against employees belonging to minori- ty races existed in Respondent's San Francisco store. Following a meeting in April, the Union's position with respect to discrimination and, numerous other matters affecting employment in Respondent's store was formulat- ed in a letter dated April 11 which included, inter alia, this language: Probably the most important matter raised was the possibility of racial discrimination. This is outlawed under the terms of the agreement and certainly again in this day and age should not be a problem. It was the general feeling of almost all present that discrimination does exist and that this discrimination is directed against the Negro employees and the more senior employees, senior, that is, in the point of age. According to Johnson's credited testimony copies of this letter were distributed to several union members and it was also served en the Retailer's Council, the bargaining' agent for the multiemployer unit with which The Emporium was affiliated. Following the issuance of this letter, according to Johnson, there were meetings with the Retailer's Council and The Emporium, at which it was agreed that the Respondent would "look into the matter" of discrimination 'and see what could be done to "improve conditions." ' In May, at the request of a union-member, Johnson met with- some 10 employees. At this meeting, according to Johnson's credited testimony, the main, concern was the promotion of one Russell Young, a Negro. (This same matter had been broached in the prior meeting.) When it was pointed out that Young was leaving on his vacation it was agreed 'to'take the matter up at a later meeting. This later meeting occurred about September 3 at the `Union hall. In addition' to Union -representatives and some Emporium employees, it wasattended by representatives of the Fair Employment Practices Committee (FEPC) and the Equal Economic Opportunity Commission (EEOC). The matter of Young was again stressed, it being-claimed that he had been passed over for,apromotion which was given, instead, to an "outsider." Johnson testified concerning the September 3, meeting: At this meeting there were quite a few things discussed and we specifically informed the individuals that we were going to go into an Adjustment Board, that we wanted to process these grievances and' we felt that there were problems of discrimination -and it was my own personal feeling that all the--discriminatory acts should be processed and that we- ought to follow through and take care of it. At this meeting I specifically .. pointed out that it is going to take a long time in some of these cases, but that they would not only, be helping themselves, but other people involved in 'it, because we had very strong feelings on the question. It was agreed at that time and they were advised by bothMr. Scott (EEOC) and Mr. Smith (FEPC) to take it to the union and that the unionshould follow through and take -whatever steps are necessary up to and including, arbitration [provided -for in. the bargaining agreement] to adjudicate the grievances. Both Hollins and, Hawkins were present at this,and,prior meetings. By letter dated September 4, the Union addressed the Retailer's Council as follows: Department Store Employees Union has made every effort to 'resolve the grievances raised with The Emporium regarding matters concerning our members employed in the stock and marking areas. Apparently we have, been somewhat less' than successful in our efforts and it appears the only recourse we have, is to request a meeting of the Adjustment Board to hear the entire case. This communication will serve as our request for a meeting of the board. We specifically charge the Emporium with violations of Section 5 B and 21'E, of the Agreement between the San Francisco' Retailers Council and Local 1100. We have THE EMPORIUM approximately 120 pages of testimony, recorded by a court reporter to substantiate our position.' We are ready to proceed to immediate arbitration if the Emporium is agreeable. Would you kindly contact me in order that a mutually convenient date maybe agreed to. Pursuant to this letter a meeting of the Adjustment Board, as provided for under the bargaining agreement, occurred on October 16. At this meeting the four employees who later 'picketed the Respondent, including Hawkins and Hollins, stated in effect that they would not participate as individuals but only as a group; that they objected to prosecuting -grievances on an individual basis and wanted the matter of racial discrimination presented as an issue affecting all employees belonging to minority races; that they insisted on meeting with Respondent's president; 2 and that they would not go ahead with the Adjustment Board hearing. Thereupon, the four of them walked out of the meeting. Johnson, who was unable to attend the meeting but who called,to inquire about it, testified concerning his reaction on being informed that the four employees refused to testify as individuals: I wasn't very happy because we had involved everybody including our attorney and we had prepared to go on into arbitration. Several times I informed all of the people that in my opinion the only solution to the problem was to follow the agreement in order that we could then have some lasting effect on any situation of discrimination. I feel very badly that we were not able to process it after the testimony was not presented by the affected individuals, and this is very vital testimony, our attorney advised that it would be very difficult to proceed to arbitration because we would not have a whole case to present 3 With respect to Russell Young concerning whom complaints had been filed with the Union on several occasions, apparently on the basis of the Union's representations he was promoted to the office of first assistant manager. The date 'of his promotion is not established but it occurred before the start of any picketing. Hawkins named one other, Fata, as having benefitted from the Union's intervention. D. The Picketing Unable to have the issue of racial discrimination as they viewed it processed by the Union as a single issue affecting all employees belonging to minority races, Hollins attempt- ed to present his views in the matter to Respondent's president, Batchelder. He told Batchelder that he wan ted to discuss what was happening among minority employees. Batchelder replied that Personnel Director Henderson attended to such matters and he should see Henderson who I A transcript was made of the meeting of September 3. 2 Hawkins testified that Hollins said that they would not testify as individuals but only as a group whose main purpose was to talk to the Respondent's president and to reach an agreement with him on conditions at the Emporium; that they wanted to talk to the president or to no one. 3 Possibly there was a second meeting of the Adjustment Board on October 18, not attended by the four employees who walked out on the tat took care of "problems like that." Hollins testified that he had previously discussed the issue with Henderson but now refused Batchelder's suggestion.4 On October 22, Hawkins, Hollins, and two or three other employees held a press conference regarding what they viewed as Respondent's discriminatory racial policies. Attending-'this meeting were representatives of local newspapers and radio stations. It being'admitted that the statements these employees made public at this meeting were substantially,the same as the text of pamphlets they later distributed while picketing, reference is made to that text to be reproduced below. On the following Saturday, November 2, Hawkins, Hollins, and at least two other employees not named in the complaint began picketing in front of The Emporium. The picketing occurred on their own time. The entrances to the store were not obstructed. There was neither, violence nor incitation to violence. The text of the pamphlets distributed to passersby by those picketing follows: BEWARE EMPORIUM SHOPPERS BOYCOTT IS ON !!! FOR YEARS AT THE EMPORIUM BLACK, BROWN, YELLOW AND RED PEOPLE, HAVE WORKED AT THE LOWEST JOBS, AT THE LOWEST LEVELS. TIME AND TIME AGAIN WE HAVE SEEN INTELLIGENT HARD, WORKING BROTHERS AND SISTERS DENIED PROMOTIONS AND BASIC RESPECT. THE EMPORIUM IS A 20TH CENTURY COLONIAL PLANTATION. THE BROTHERS AND SISTERS ARE BEING TREATED THE SAME WAY AS OUR BROTHERS ARE BEING TREATED IN THE SLAVE MINES OF SOUTH AFRICA. WHENEVER THE RACIST PIG AT THE EMPORIUM INJURES OR HARMS A BLACK SISTER OR BROTHER, THEY INJURE AND INSULT ALL BLACK PEOPLE. THE EMPORIUM MUST PAY FOR THESE INSULTS. THEREFORE, WE ENCOURAGE ALL OF OUR PEOPLE TO TAKE THEIR MONEY OUT OF THIS RACIST STORE, UNTIL BLACK PEOPLE HAVE FULL EMPLOYMENT AND ARE PROMOTED JUSTLY THROUGH-OUT THE EMPORIUM. WE WELCOME THE SUPPORT OF OUR BROTHERS AND SISTERS FROM - THE CHURCHES, UNIONS, SORORITIES, FRATERNITIES, SOCIAL CLUBS, AFRO-AMERICAN INSTITUTE, BLACK PANTHER PARTY, W.A.C.O. AND THE POOR PEOPLE'S INSTITUTE. E. The Discharge On November 7, Hawkins and Hollins were called to the office of Respondent's manager of labor relations, Paul Ehrenfried, and handed the following notice: On October 22, 1968, you issued a public statement at a press conference to which all newspapers, radio, and TV stations were invited. The contents of this statement were substantially the same as those set forth in the prior meeting, but what business, if any, was transacted there is not sufficiently developed in the record for a finding. 4 Later, while the picketing was in progress, Johnson saw Hollins and when Hollins told him the only one they [the picketeers! wanted to talk to was Batchelder, replied that he, Johnson, was spokesman for the Union, represented a few thousand clerks, and had never met Batchelder. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sheet -attached. This statement was broadcast ,on Channel 2 on October 22,1968 and Station KDIA. On November 2nd you distributed ,copies of the attached statement to Negro customers andprospective customers, and to other persons passing by in front of The Emporium.` 'These statements are untrue and are intended to Wand will, if continued injure the reputations of Tlie-Enipori- um. There are ample 'legal remedies to correct any discrimination you may claim to exist. Therefore, we view your activities as a deliberate and unjustified attempt to injure your employer. This is to inform you that-you may be discharged if you repeat any of the above acts or make any similar public statement. On November 9, Hollins and Hawkins for a second time, again on' their own time, picketed The Emporium and handed out pamphlets to the public which in all material respects were identical with the pamphlets distributed on the prior occasion. As on the prior occasions there was no violence, no incitation to violence, no criticism of Respondent's product, and no blocking of entrances to Respondent's store. On November 11, the Respondent. discharged Hollins and Hawkins. The discharge slips given these employees bore the notation: You are being discharged today. Distribution of "Boycott Emporium" literature on Saturday, Novem- ber 9, 1968 in front of The, Emporium,,855 Market Street, S.F., pursuant to written warning dated 11/_7/68 for similar action onl1/2/68. F. The Union vs. the Picketing In view of what appears to be the General Counsel's position that the Union concurred or at least acquiesced in the picketing activities of the two dischargees, in addition to what has already been noted of the differences expressed between the Union's approach to the processing of grievances with respect to the issue of racial discrimination under the bargaining ' agreement - and that -pursued by Hawkins and Hollins, it is noted that W. Griffin, the Union's business agent, testified that Johnson did not advise these employees to picket but told them it was up to them as individuals, that they could take whatever "actions they wished" but he hoped they would follow the union program through arbitration and the Adjustment Board. Griffin further testified that after the picketing started, he told Hawkins that they-the picketing employees-were going the wrong way about it, that they should "let the Union handle it." Johnson testified that he never warned or instructed ' employees not to engage in activities on their own, but at the September meeting when-some employees exhibited frustration ' and it was suggested that The Emporium be picketed, the employees were informed "that we had a contract, we couldn't participate in any boycotting activities, that individuals could take whatever action they wanted to` as" long as it was' legal," that "an 5 Actually, the General Counsel's position,,as I understood it, was that the good faith of those engaging in the picketing 'and related activities was individual had a ri ght,to take action that a Union could not take." He advised the employees, that if the matter went to arbitration it might take as much as 7 months, to, get a decision, but, according to him, :they wanted something "dramatic.'' ",I informed them," .he testified, "what an individual wanted to do-on ,their ,own, they could do, but I wasn't going to engage in , any drama, but I wanted, some orderly legal procedures that would have some long lasting effect." Johnson further testified that he told the employees that the Union accepted no'responsibility for their actions as individuals as long as it was ,not concerned with the contract. "We. will advise them as to what we thought was the best procedure, but it was obvious that our advice ' didn't carry much weight at the.time." Finally-Johnson testified that about the time the pamphlets were being distributed by those picketing he talked to Hollins, told him that ,he did not want to see him fired, and that the only way to resolve the matter was through arbitration . It was then that Hollins replied that the "only one" they wanted to talk to was the president of Respondent, Batchelder, The Union did file a complaint or protest with the Retailer's Council on. the discharge of Hawkins and Hollins but did not file the charge which initiated this proceeding. G. The Evidence on Discrimination The General. Counsel very properly disavowed any intention or purpose of establishing as a fact that the Respondent discriminated against any of, its- minority employees because of the wording in footnote 6 of the Board's -Supplemental Decision in Tanner' Motor ,Livery, Ltd, 166-NLRB 551-"It-is sufficient for the purposes of this decision that the employees had a reasonable basis for so believing [that there was a discriminatory hiring policy based on racial origins,]"-and pursuant .to the Trial Examiner's prodding, the counsel introduced such evidence as. he considered proper to show "reasonable basis." 5 To show this, Hollins and Hawkins were interrogated on their knowledge of discriminatory acts engaged, in by Respon- dent, and the General Counsel and Respondent jointly introduced a summarization of Respondent's hiring, and promotion records. It is, further noted that in its warning notice to Hawkins and Hollins, Respondent specifically charged them with falsely accusing Respondent of racial discrimination and acting in a manner intended to injure the reputation of The Emporium. Because of these several considerations, and because of my own uncertainty as to what the Board would regard as a "reasonable basis" for the publications issued by Hollins and Hawkins as part of their picketing activities, I note briefly such evidence as was produced on the issue of racial discrimination. Reference has alreadybeen made to complaints made to the' Union of Respondent's failure to promote , Russell Young. Both-Young and one other apparently 'the, subject of complaints of racial discrimination received promotion's prior' to any of the activities engagedin'by Hawkins and Hollins which caused their discharges. Although, ques- tioned at some length in the matter, the only actual case of discrimination that either Hollins or Hawkins was able to all that was required to establish the protected nature of those activities. THE EMPORIUM recall had to do with Respondent's failure to make Hollins a supervisor. It appears that sometime prior to October 1968, Hollins' supervisor told him that he considered him "very highly to become a supervisor," but that to do so he would have to get a haircut. He was then wearing his hair in what is generally known as an Afro-natural haircut. Apparently he refused, and was not made a supervisor at that time. In October 1968, when the supervisor in his department became ill, he was asked to take the position of temporary, supervisor and did so, with the pay of supervisor, whether with, or without the suggested haircut not being shown.6 He was told at that time that he was "suited" for the job of permanent supervisor, and that Graff, his-,superior, would like to see him take it. Hollins replied that he did not want the job because he had been previously "passed over." This occurred before Hollins had engaged in any of the activities which precipitated his discharge. As to Hawkins' testimony that Hollins was denied a supervisor's badge, Hollins admitted that he did not know whether temporary supervisors normally wore badges. This is the single specific case of alleged discrimination alluded to in the testimony of Hawkins and Hollins. Otherwise, their testimony on their "belief" that Respon- dent engaged in racial discrimination rested on the "beliefs" of, others. Following their press conference and first instance, of picketing, they canvassed a number of employees from minority races and compiled notes on the responses they got, responses which showed that these minority employees believed they were discriminated against. Obviously, this could not have motivated their picketing activities in the first instance. The General Counsel in stressing the "reasonableness" of the dischargees' belief, relied on Respondent's employment records filed- with, EEOC which showed, inter alia, that less than two,percent of the total complement of Respondent's officials and managers were from minority groups, and that Respondent had only 1 minority employee in a total of 47 on-the-job trainees. On the other hand, Respondent's assistant president for the past 11 years, Howard Carber, testified without contradiction that employment records filed with EEOC, referred to above, were not limited to The, Emporium store where the dischargees were employed but to the entire Emporium organization which embraces numerous stores in different locations; that it was normal to start employees, ,at the, lowest rate unless he is a skilled craftsman, that both himself and Respondent's president started as stock clerks; that Emmett Powell, now traffic manager and a Negro, started as a stock clerk and was promoted some six times before achieving his present position; that Andrew Howard, a Negro, was promoted up through' the ranks and presently directs some 500 employees; that The Emporium put black sales employees on the floor before any other department store in San Francisco; and that any complaint of discrimination would 6 Hollins acted as temporary supervisor for a comparatively brief period in the fall of 1968, after which he refused the position of permanent supervisor. It does not appear from the evidence that as'acting supervisor he exercised independent judgment sufficient to constitute him a supervisor within the meaning of the Act, and for the major portion of his tune he 183 be referred immediately to the personnel office, and, if sustained, corrective action would be taken.. , H. Concluding Findings The discussion which follows will fall into two general categories: (1) whether the type of picketing with its boycott appeal and invective against the Respondent employed both orally and in the pamphlets distributed just outside Respondent's store was -protected activity That it was "concerted" there-is no doubt. (2) On the assumption that it was protected, whether the picketing and related activities engaged in by Hawkins and Hollins were, violative of the terms of Respondent's bargaining agreement with the Union and inconsistent with and disruptive of the orderly course of procedures under that agreement for the settlement of, grievances to a degree, that it would not effectuate the policies of the Act to-extend its protection to such activities. 1. The picketing Preliminarily it is repeated that there was neither violence nor threat of violence by those picketing, entrances to The Emporium were not blocked, and no attack was made on Respondent's merchandise. That concerted employee activities with an object of bettering the working conditions of employees belonging to minority groups, or to majority groups for that matter, are. protected under the. Act is hardly open to challenge. The only real novelty in the Tanner case (Tanner Motor Delivery, Ltd,, 148 NLRB 1402), on which the General Counsel and the Charging Party rely, is that the concerted activities in that case had,as its object the hiring of minority group employees. There is no evidence that the picketing which occurred here was to require the hiring of, additional employees from minority groups, or that any complaint was registered on that ground with the Union or the Respondent at any time . Therefore the seemingly, low percentage of - hires from minorities shown by Respondent's employment records, had nothing to do with the employees' good faith or lack of it in undertaking their picketing activities . The Tanner decision has limited application, if any, to the facts here,, though some of the language used in that decision may, be pertinent, if not controlling. In Tanner the Board while explicitly making no findings and drawing no conclusions that the Employer actually discriminated against minorities in its hiring practices7 found in its remand decision in the case (166- NLRB- 551) that the Employer's failure to hire any Negroes among the 50 to 60 drivers employed in its business was sufficient to establish that in their concerted protest the employees in that case "had a reasonable basis" for believing that discrimination in hiring existed, and that their "concerted protest ..: - was not grounded on contrived or flimsy evidence, which otherwise might have reflected an intent exercised no supervisory functions whatever. Accordingly, I have treated him as a rank-and-file employee. T There was in fact no substantial evidence in Tanner that any applicant for employment had ever been refused employment because of color or racial origin. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more to`harass their employer than to'[eradicate] a noxious working condition."8 I have no hesitancy on the basis of Tanner, or independently of it, in finding, that Hawkins and Hollins believed that Respondent was discriminating against Negroes- and other' minority., groups in matters such as promotions and`-, working conditions.` They maywell have believed that those conditionswere "noxious," butI hasten to. add that .I "draw no, such conclusion on the evidence before me. The only concrete and probative evidence in this matter -was, the requirement that `Hollins get a haircut in order to qualify ' as a^ supervisor. I would hesitate to conclude that such =a requirement was racial discrimination solely because. he wore his 'hair in Afro-natural style, without having a little evidence with respect to Respon- dent's general grooming requirements relating to both Whites and Blacks. To, be sure, as a witness Hollins appeared, to me to be literate, `lucid, presentable, and personable, but I am not Respondent's personnel director. It is entirely possible that Respondent might object to white males wearing beards and shoulder length hair, or its Chinese employees wearing their hair in the traditional queue, -but what business its that of ours? (The question is purely rhetorical.) Nor-would I draw an inference of discrimination on the basis of the statistical showing of hirings and' promotions relating to^ minority groups without a comparable showing of the ratio of applicants as between minority and majority groups and their comparative qualifications, work records, and reasonable expectations of advancement. In short, only a God-given" expertise could substitute for this lack of evidentiary facts, an expertise-1 do not possess and that could; not . be derived from- the somewhat less sacred precincts of; officialdom. I base my finding, and, conclusion. that Hawkins and Hollins acted in .'good-faith' belief that Respondent was practicing. discriminationmagainst minority employees solely because it was the official position of the Union (of which they had knowledge) and the belief was widespread among Emporium employees. Given good faith. in their picketing -activities; the next problem is whether Hawkins and Hollins, took themselves out of,the protection of the Act by the invective they used both orally and in the pamphlets they distributed, coupled with a call for a boycott by a minority race. To recapitulate, the invective in question accused The Emporium of discrimination . in working conditions accorded"' their minority, employees, called it a"20th Century Colonial Plantation," equated its treatment of Negro employees with s Presumably the Board, not having found that any discrimination in hiring actually existed, in its use of the term "noxious working condition' is referring to'the employees' good-faith belief rather thanany conclusions of its own. 9 This finding -is not grounded on the saying that "where there is,smoke there is fire," only that where there is so much smoke one may have,a good-faith belief that there is fire. 10 Such language if-accompanied by, say, a ' hefty shove, a poke in-the nose, or a kick in the posterior would almost certainly deprive the offending employee of the protection of the Act no matter how great his good-faith motivation, but on the theory (I'presume) that "sticks and stones may break my bones but words can never harm me," we must distinguish between the use ` of epithets and 'corporeal assault, no "matter how ' flagrant "the former or how minor the latter, when we are dealing with strike or picket line activities. Language found permissible by the' Board the- "Slave Mines of South Africa," employed the term "Racist Pig" in referring to Respondent, and madee-this appeal: "Wherefore, we encourage --all of our people to take their money out of this racist store, until black,people have full, employment and are .promoted justly through-out the Emporium." A certain amount of name-calling and exaggeration has been found permissible, when occurring "in collective- bargaining sessions, and in strike and picketing` cases. At times the use'of abusive" ep-itheets-'has been 'ascribed to "animal 'exuberance" or termed "spontaneous...... his cannot apply here. Before there had been'any picketing the employees in question held a press and radio conference in which they used substantially the same language,' and made substantially the same,appeal. In short-, whatever ' else"may be said of the character of the' total performance, it was premeditated, deliberate, and made with an intent to do harm to' Respondent's business unless and until the Respondent made what those picketing would regard as an appropriate' response. Attention has also been paid in the decisions to the environment in which the abusive conduct takes place, on or off the job, during or outside working hours, etc. Here the conduct occurred off the job and onAhe employees' own time. Had they while on the job, singly or concertedly, without immediate provocation 'addressed their supervisors or officers of management as "racist pigs," and been discharged therefor, I hardly think their employer would be faced ,with a complaint issued by this'ageacy.1e It seems to me that the employer suffers far greater' injury when such accusations and abusive terms are addressed' to the general public and used as incitation to boycott. The General Counsel would distinguish this case from cases in which the protection ,of the Act was denied those acting concertedly because they attacked- the- Employer's product and such attack was unrelated to a'labor dispute and 'unaccompanied by an appeal for public support. N.L.R.B. v. Electrical Workers, 346U.S. 464, Patterson- Sargent, 115 NLRB-255. The cases, as the General Counsel contends; are distinguishable. Here there was no attack on the quality of Respondent's merchandise, the attack was related to -a labor dispute, and it was accompanied by an appeal to-the -public. I would be, reluctant to assume, however, that because verbal assaults are related to a labor dispute andattack an employer's reputation rather than the employer's merchandise, anything goes:il With a depart- ment `store which must depend to a substantial degree on the patronage " of'minorityegroups, I should think the verbal assault in such : terms as "racist pig" and "colonial plantation" would have a graver potential than-an attack on includes such choice epithets as "wop-bastard," "ignorant s-o-b," "scabby bastard," "goddamn bastards," etc., but,the line is drawn at "indecent and obscene suggestions relating to biological and bodily functions" and language ascribing "the capability of committing a'n act so foul ' as-to be unmentionable. ' .Efro Manufacturing Company, "108" NLRB 245,, 249; Nutone, Inc., 112 NLRB 1153, 1171-1173; American Tool Works Company, 116 NLRB 1681; Longview Furniture Company, 110 NLRB 1734, 1738 (in which the' Board sets forth its rationale). If still interested, see Bowling Green Mfg. Co. v. N.L.R.B., 416 F.2d 371 (C.A. 6), and Santa Fe Drilling Company v. N.L.RB., 416 F.2d 725(C.A..9), enfg 171 NLRB;161;' eery Coach, 166 NLRB 560.' ii "As the Bard put it, "Who steals my purse steals trash, 'twas something, nothing, 'twas mine, 'tis his .. , but he who filches from me my good name robs me of that which not enriches him but makes , me poor indeed." THE EMPORIUM 185 the store's merchandise, and the public would be in no better position to determine the truth or falsity of the accusations 12 It is further observed that misstatements of fact, where not deliberately or maliciously false, do not remove an employee engaged in concerted activities from the protec- tion of the Act, and I have already found that Hawkins and Hollins believed that Respondent was engaging in discrimi- natory practices relating to minorities. I have some question in my mind whether, when a basis for the employers discharge action is the untruthfulness of the employee's verbal assault as it is here, we can dispose of the matter so summarily, but the decisions point in that direction. Schnell Tool & Die Corp., 144 NLRB 385; Tr-'acy Towing Line, Inc., 166 NLRB °81; Bowling Green' Manufacturing Co., 32; Home Restaurant Drive-In, 127 NLRB 635. Cf. Bowling Green Mfg. Co. v. N:L.R.B., 416 F.2d 3171 (C.A. 6), reversing. 169 NLRB 32. And where the decisions lead I must follow. Returning to the language -of the pamphlets itself, the General Counsel correctly observes that such terms as "racist' pig" have become terms of common usage in the "contemporary civil rights struggle.", (Parenthetically, it is noted that as adjudicators under the Act we do not belong in the contemporary civil rights-struggle. Congress did not put us there.) I do not know, however, that the currency, of this and like terms make them any the less terms of obliquy or less damaging to the prestige of a department store such as The Emporium. I assume that their gravity depends a good deal on who is at the receiving end, and how great the potential is for injury. Here, I think the gravity is substantial and the potential for injury considerable. I cannot say, however, from my study of the cases, that the Board has given persuasive weight to such factors in strike and picketing cases. 2. The concerted activities vs. the bargaining agreement What we have here is a group of four employees who set out on their own to rectify what they in good faith considered working conditions unfair to minority employ- ees. Apparently, they were self-appointed, for there is no evidence that they were elected or in any way designated by minority employees generally to represent them, they alone walked out of the September 3 meeting, and it does not appear that they were joined in their picketing activities by other Emporium employees. We are concerned with only two of them, Hollins and Hawkins, the other two not being named in the complaint. It matters not whether we as individuals approve or disapprove their conduct, for if we approved it in toto there would still remain the issue of whether their activities ran counter to the bargaining agreement by which the Respondent was bound and had the effect of requiring, if their demands were to be met, that 12 Cf. C. A. Laboratories, Inc., 88 NLRB 673, in which the protection of the Act was denied an employee who called his employer "facist" and a "facist lover," but in which the Board found the objectionable language was "not made in a bargaining conference or on a picket line, where lower standards of etiquette generally prevail." 13 Apparently the General Counsel would find the Union's action in filing a complaint with respect to the discharge of the two employees approval or acquiescence in the action they took. The Union, which properly considered that it represented all the employees in the bargaining the Respondent bargain on two fronts when it was required by law to bargain on,` only one. On the entire evidence I am convinced that their activities did run counter to the bargaining agreement and did have that effect. Aside froth the clause'- outlawing racial and other discrimination, the bargaining agreement set up a compre- hensive procedure for the a' djustrnent an d arbitration of grievances'. The Union was bound to 'follow those procedures and so .was the,` Respondent. The picketing employees were,not satisfied to follow those _procedures but, in the words of- the Union's president, wanted something "dramatic." The Union declined to submit to their demands that grievances ,be prosecuted on a storewide rather than an individual basis, or to endorse their resort to the "dramatic" byway of Picketing and the distribution of accusatory pamphlets. There is no basis in the evidence for a finding that the Union approved, endorsed, or in any way connived in the action taken by the four employees. They were told that the Union would consider it illegal for it to engage in -such activities, but they could do -what they pleased as individuals. Obviously, the Union could not stop them from acting as individuals, and.beyond attempting-to persuade them against the course they took , was powerless to prevent it. It would be absurd to say that because they and the Union had a'common ultimate objective,-these four employees were somehow implementing. or strengthening the Union in its position. They were acting outside the agreement and contrary to the Union's advice and urging. All the evidence indicates that the Union, their duly designated bargaining representative, was endeavoring in every way available to it under the agreement to adjust any and all cases of racial discrimination brought to its attention, and in at least one and apparently two cases had brought about the desired adjustment. It is also evident that it was prepared to resort to arbitration to enforce its position that racial discrimination in conditions of employment existed in Respondent's store, and it was handicapped in proceeding by reason of the four employ- ees' refusal to assist or be represented by the Union in the matter.13 The evidence further establishes that this was no mere presentation of a grievance but nothing short of a demand that the Respondent bargain with the picketing employees for the entire group of minority employees. This is shown by Hollins' meeting with Respondent's president, Batcheld- er, in which he told the latter that he wanted to "discuss what was happening among minority employees"; his later insistence that those picketing would be satisfied with nothing less than a meeting with Batchelder; and Hawkins' testimony that those picketing were seeking to "talk to the top management to get better conditions for The Empori- um," that those picketing were seeking to accomplish their objectives through "group talk and through the president if unit including Hollins who never affiliated with it , took this formal action because it no doubt considered it its duty to do so in its representative capacity. It is noted, however, that it did not file the charge which initiated this proceeding. To read approval and acquiescence into its formal action would be strained to say the least and contrary to all the evidence establishing the Union's disapproval of action taken by the dischargees which caused their discharge and its effort to persuade them against taking such action. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we could talk to him. It is further clear that the Respondent never refused to. have an informal discussion with-`these, employees and referred them to Respondent's personnel director for such discussions, and, that, they scorned such talks and insisted on negotiating directly with Batchelder. In sum, to extend the protection of the Act to the two employees named in the complaint would 'seriously undermine the right of employees' to bargain collectively through representatives - of their own choosing, 'handicap and prejudice the employees' duly designated representa- tive in its efforts ,to bring about a durable improvement in working`conditions~ among employees. belonging to''racial minorities, and-place , on the Employer an unreasonable burden of attempting to placate self-designated representa- tives of minority groups while abiding by the' terms of a valid bargaining agreement and attempting in good faith to meet whatever demands the bargaining representative put forth under'that agreement. Therefore, aside from the issue 14 A matter which I have felt compelled to set up in some detail in the event this decision is reviewed by, higher authority. 15 The warning notice given the two employees establishes the,basis on which the'discharge action occurred.'That notice gave two reasons for the discharge which would follow if they continued in the activities complained of: the untruth of the statements they were making about racial discrimination, and their acting outside the ample legal remedies that existed to correct any discrimination that occurred. The reference to legal remedies is^ably'construed as meaning that their course of action lay of whether the picketing employees engaged in invective and incitation to boycott which denied them 'protection in their concerted activities,14 I would dismiss the complaint in this proceeding-15 Iv. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5),of the Act. 3. -The , Respondent has not engaged in unfair labor practices violative of Section 8(axl) of the Act, as alleged. RECOMMENDED, ORDER It is recommended that the complaint be dismissed.'6 outside the terms of the bargaining agreement which Respondent and the Union were bound to follow. Cf. Tanner Motor Livery, 166 NLRB 551. 16 In , the event no exceptions are filed as provided by Section 102.46 of the Rules' and Regulations - of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall as_ provida in Section , L02.48 of the Rules "and Regulations,, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes.