Local 106, Glass Bottle Blowers

LOCAL 106, GLASS BOTTLE BLOWERS Local No. 106, Glass Bottle Blowers Association, AFL-CIO (Owens-Illinois, Inc.) and Local No. 245, Glass Bottle Blowers Association, AFL-CIO (Owens-Illinois, Inc.) and Virgie Walters. Cases 9-CB-2143-1 and 9-CB-2143-2 May 28, 1974 DECISION AND ORDER On December 29, 1972, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondents filed a brief in support of the Adminis- trative Law Judge's Decision. The Board has considered the record and the attached Decis' on in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint alleged that Respondents violated Section 8(b)(1)(A) by maintaining locals whose membership is determined solely by sex, and by refusing employees membership and refusing to process grievances solely because of sex; and violated Section 8(b)(2) by attempting to cause the Employer to discriminate against its employees solely because of their sex; and their nonmembership in each of Respondents, respectively. The Administrative Law Judge found that the existence of separate locals whose membership is determined solely by sex is not a violation of Section 8(b)(1)(A) of the Act and the failure to process grievances on the basis of sex is not a violation of 8(b)(1)(A).i We do not agree. Respondents, Local No. 106 and Local No. 245, serve as joint bargaining representatives for the Employer's production and maintenance employees. Respondents stipulated that Local No. 106 and Local No. 245 restrict their membership and process- ing of grievances to male and female unit members, respectively. In 1945 Local No. 106 represented all machine operators (machine operator positions were limited to men only), Local 245 represented female employ- ees in miscellaneous job categories, and Local No. 244 represented male employees in miscellaneous job categories. In 1949 the International Union, the Glass Bottle Blowers Association, AFL-CIO, was certified by the Board as the collective-bargaining I Although the Administrative Law Judge made no specific findings as to the allegation in the complaint that Respond,-,,ts %tolated Sec 8(b)(2) by attempting to cause the Employer to disco-moat.' . -1 3 , employees solely because of their sex and their nonmomb.,:, r in cach of Respon- dents , he did recommend that the complaint be cosi d in its entirety 2 The parties stipulated that 50 to 60 percent of all job categories are 210 NLRB No. 131 943 representative of a unit consisting of production and maintenance employees. Later in 1949 Local No. 106 and Local No. 244 were merged into Local No. 106 representing all male employees, and Local No. 245 continued representing all female employees. In 1968-69 Respondents and the Employer agreed to eliminate sexual discrimination and open all job categories to both sexes.2 However, the locals remained segregated by sex and also continued restricting their handling and investigation of grievances by sex. The present collective-bargaining contract was negotiated by a joint bargaining committee compris- ing representatives of both Locals and the Interna- tional and was ratified at anoint membership meeting of both Locals. The contract, which includes a union-security clause, does not discriminate and does not distinguish between male and female or between members of Local No. 106 and Local No. 245. The contract's grievance-arbitration machinery is open equally to members of both Locals and unit members of both sexes. However, female employees must have their grievances investigated and handled by Local No. 245 and male employees must have their grievances investigated and handled by Local No. 106.3 A grievance affects both female and male employees regardless of which Local processes the grievance. The Administrative Law Judge found that Respon- dents' restriction of their memberships on the basis of sex and refusal to process the grievances of employees solely because of their sex did not violate Section 8(b)(1)(A). He found that this conduct did not result in the kind of invidious treatment and derogation of employment status that interferes with the Section 7 rights of employees, because all unit employees had equal access to a union, the contract does not distinguish between sexes and was jointly negotiated and ratified, all jobs are open to both sexes, and all employees regardless of sex or local membership have equal access to grievance-arbitra- tion machinery. In effect, he found that the male and female employees received equal, although separate, treat- ment, and therefore there was no violation. We cannot accept this reasoning. Separate but equal treatment on the basis of sex is as self- contradictory as separate but equal on the basis of race.4 In both areas separation in and of itself connotes and creates inequalities. Not only can separating females from males solely because of sex filled by both men and women 3 The two Locals have informally adopted this procedure, their constitutions and the contract do not specify which Local must process a grievance 4 Cf Bro- v Board of Education, 347 U.S. 483, in which the Supreme Court held that c.:regation of children in public schools solely on the basis of race was "inherently unequal " 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD generate a feeling of inferiority among the females as to their work status, since the policy of separation is usually interpreted as reflecting the inferiority of the females, but also it can, as set forth below, adversely affect the working conditions of both groups solely because of the difference in sex. For example, since, as mentioned previously, a grievance affects both male and female employees regardless of which Local processes the grievance, the employees whose Local did not process a grievance merely because of the grievant's sex are nonetheless bound by the outcome of the other Local's processing of the grievance. These employees have therefore, solely because of sex, been denied a voice in the resolution of matters affecting their working conditions. Indeed, Respondent's sexual discrimination serves no useful purpose. The collective-bargaining agree- ment applies equally to all employees and makes no distinctions based on sex or local memberships. All jobs are open to both sexes. There are, thus, no special circumstances to justify the separate process- ing of grievances or the maintenance of separate locals. Accordingly, we find that Respondents by main- taining locals whose memberships are restricted by sex and by refusing to process grievances because of the sex of the employees and their nonmembership in each of Respondents, respectively, restrained and coerced employees in the exercise of their Section 7 rights in violation of Section 8(b)(1)(A) of the Act.5 General Counsel argues that Respondents by attempting to cause the Employer to discriminate against its employees solely because of the sex of the employees and their nonmembership in each of Respondents, respectively, have violated Section 8(b)(2) of the Act. Section 8(b)(2) is violated when a union causes or attempts to cause an employer to discriminate against an employee in violation of subsection (a)(3). Respondents' discrimination based on the sex of the employees did not cause or attempt to cause the Employer to engage in any activity, much less to discriminate against its employees, in violation of Section 8(a)(3). Accordingly, we find that Respon- dents have not violated Section 8(b)(2) of the Act. CONCLUSIONS OF LAW 1. Local No. 106 and Local No. 245, by maintain- ing locals whose memberships were determined solely by sex, restrained and coerced employees in the exercise of their Section 7 right to be represented by a representative of their choosing, thereby engaging in unfair labor practices in violation of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. 2. Local No. 106 and Local No. 245, by separate- ly processing the grievances of male and female unit members and by refusing to process grievances because of the unit members' sex, restrained and coerced employees in the exercise of their Section 7 right to be represented by a representative of their own choosing, thereby engaging in unfair labor practices in violation of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, they shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Accordingly, Respondents shall be ordered to cease and desist from maintaining locals whose member- ships are determined solely by sex, from separately processing the grievances of male and female employees, and from refusing to process grievances because of the unit members' sex. Respondents shall be ordered to merge their respective locals, to admit into membership any unit employee without regard to sex, and to process the grievance of any unit member without regard to sex. ORDER Pursuant to Section 10(c) of the Na.ional Labor Relations Act, as amended, the Board hereby orders that Respondents, Local No. 106, Glass Bottle Blowers Association, AFL-CIO, and Local No. 245, Glass Bottle Blowers Association, AFL-CIO, Co- lumbus, Ohio, their officers, agents, and representa- tives, shall: 1. Cease and desist from restraining or coercing employees in the exercise of their rights under Section 7 of the Act by maintaining locals whose membership is determined solely by sex, by separate- ly processing the grievances of male and female unit members, and by refusing to process grievances because of the unit members' sex. 5 Chairman Miller would make clear that he views the violation herein as arising out of Respondent's failure fairly to represent the employees, in that separate but allegedly equal representation is not fair representation, as the Chairman understands the meaning of that term as used in Miranda Fuel Company, Inc, 140 NLRB 181, and Local No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (The Business League of Gadsden), 150 NLRB 312, enfd 368 F 2d 12 (C A 5, 1966), cert denied 389 U S 837 (1967) Although a majority of the Board, including the Chairman, held, in Jubilee Manufacturing Company, 202 NLRB No 2, that employer discrimination on account of sex does not per se violate Sec 8(axl), there was no union respondent and thus no issue of fair representation posed in that case As his Board said in Miranda, supra, at p 185, " labor organizations, because they do represent employees , have statutory obligations to employees which employers do not " LOCAL 106, GLASS BOTTLE BLOWERS 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Merge their respective locals. (b) Upon request, allow into membership any unit member without regard to sex. (c) Upon request, process the grievance of any unit member without regard to sex. (d) Post at their business office and meeting hall copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondents authorized representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted (including all such places in the Owens- Illinois plant). Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Sign and mail sufficient copies of said notice to the Regional Director for Region 9, for posting by Owens-Illinois, Inc., if willing, at all locations in its place of business where notices to its employees are customarily posted. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps they have taken to comply herewith. MEMBER PENELLO, concurring: I agree with my colleagues in the majority that Respondents violated Section 8(b)(1)(A) of the Act by separately processing the grievances of male and female unit members and by refusing to process grievances because of the unit members' sex. I also concur in their finding that the existence of separate locals whose membership is determined solely on the basis of sex, under the particular circumstances of this case, is a violation of Section 8(b)(1)(A). However, I base my findings solely on my view that, unlike the situation in Jubilee Manufacturing Compa- ny, 202 NLRB No. 2, here there is an actual nexus between the discriminatory conduct and interference with, and restraint of, employees in the exercise of rights protected under the Act. Thus, there is a direct relationship between the separate processing of grievances of male unit members and female unit members and refusing to process grievances because of the unit members' sex and interference with the employees' Section 7 right to have a voice in the processing of grievances whose outcome can ulti- mately affect employee terms and conditions of 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the 945 employment. Similarly, there is a nexus in the circumstances of this case between the existence of separate locals whose membership is determined solely on the basis of sex and interference with employees' Section 7 rights, for if there were not separate locals there would have been no separate processing of grievances in the first place. Finally, I agree with the majority that Respondents have not violated Section 8(b)(2) of the Act because the discrimination based on the sex of the employees did not cause or attempt to cause the Employer to discriminate against its employees in violation of Section 8(a)(3). MEMBER JENKINS, concurring in part and dissenting in part: I join with my colleagues in finding that Respon- dents violated Section 8(b)(1)(A) of the Act by maintaining locals whose memberships were deter- mined solely by sex and by separately processing the grievances of male and female unit members and by refusing to process grievances because of the unit members' sex. However, the majority finds that Respondents have not violated Section 8(b)(2) of the Act because the discrimination based on the sex of the employees did not cause or attempt to cause the Employer to discriminate against its employees in violation of Section 8(a)(3). I disagree. In Miranda Fuel Company, Inc.,7 the Board held that it is a violation of Section 8(b)(2) 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, and that "union membership is encouraged or discouraged whenever a union causes an employer to affect an individual's employ- ment status." It is self-evident that the maintenance of separate locals discourages union membership and the main- tenance of "separate but equal" locals is discrimina- tory because separation for arbitrary and invidious reasons inherently connotes and creates inequality.8 By entering into a collective-bargaining agreement with the aforesaid separate locals, the Employer participates in that discrimination, and Respondents violated Section 8(b)(2) by causing the Employer to discriminate against its employees. Finally, the majority finds that Respondents refused to process gnevances for discriminatory reasons. It follows that the Employer, by entering into the collective-bargaining agreement, which National Labor Relations Board." r 140 NLRB 181 8 Brown v Board of Education, 347 US 483 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD includes the grievance provisions which discriminate on the basis of sex, further discriminates against employees, and therefore the Respondents' failure to investigate and process grievances in a nondiscrimi- natory manner also violates Section 8(b)(2).9 MEMBER KENNEDY, concurring in part and dissenting in part: I agree with the conclusion of my colleagues that Respondents violated Section 8(b)(1)(A) of the Act. I do so only because Respondents separately proc- essed the grievances of men and women based upon the sex of the employees. It is undisputed that the International is the certified bargaining representative. All grievances filed on behalf of male employees are handled by Local No. 106, as the agent of the International, and all female grievances are handled by Local No. 245. The settlement of a grievance by either Local No. 106 or Local No. 245 may be applied to both men and women employees in the bargaining unit. Denial of a voice to those who may be affected by the settlement of a grievance is an interference with Section 7 rights. Accordingly, I agree that the resolution of employee grievances by the two Locals based on sex violates 8(b)(1)(A) of the Act. I do not agree, however, with my colleagues that the maintenance of separate locals for men and women violates either Section 8(b)(1)(A) or 8(b)(2) of our Act. As noted by the majority, the collective- bargaining agreement applies equally to all employ- ees and makes no distinction based on sex or local membership. All jobs are open to both sexes. In either 1968 or 1969 the Employer, the International Union, and the two Local Unions eliminated all distinctions in job assignments based on sex. They agreed to the merger of seniority lists combining both sexes on a single list and further agreed that all jobs would be filled without regard to sex. General Counsel concedes that since 1969 all job openings have been filled on the basis of competitive bidding without regard to the sex of the employees. Article 45 of the most recent collective-bargaining agreement provides that "There shall be no discrimination by either the Company or the Union against any employee because of rack creed, color, sex, or national origin in the administration and application of the contract." (Emphasis supplied.) There is no evidence showing any distinction having been made in the employment relationship based on sex other than the grievance handling discussed above. In Jubilee Manufacturing Company, 202 NLRB No. 2, a majority of this Board ruled that discrimination based on race, color, religion, sex, or national origin standing alone is not inherently destructive of employees' Section 7 rights. We said that there must be actual evidence , as opposed to speculation, of a nexus between the alleged discriminatory conduct and the interference with, or restraint of, employees in the exercise of those rights protected by the Act. We respectfully disagreed with the views of the United States Circuit Court for the District of Columbia in United Packinghouse, Food and Allied Workers International Union, AFL-CIO v. N.L.R.B., 416 F.2d 1126 (C.A.D.C.), cert. denied 396 U.S. 903 (1969). It seems to me that the decision of the majority in the instant case is contrary to our decision in Jubilee.10 Contrary to my colleagues, I would not find that the mere maintenance of separate locals is per se violative of Section 8(b)(l)(A). Such conduct may be a violation of Title VII of the Civil Rights Act of 1964,11 but I do not perceive it to be an unfair labor practice under our statute. Therefore, I am not persuaded that the separate locals for men and women warrant findings of 8(b)(1)(A) or 8(b)(2) violations of the Act. 9 Independent Metal Workers Union, Local No. I (Hughes Tool Company), 147 NLRB 1573 at 1605 10 The majority decision herein also appears to me to be at odds with the Board's recent decisions in American Mailing Corporation, 197 NLRB No. 33, and Washington Sheraton Corporation 1/a Sheraton Park Hotel & Motor Inn, 199 NLRB No 104 We rejected the contention in both of those cases that a local union, segregated on the basis of sex , should not be permitted to participate in a Board election i i Sec 703(cX2) of the Civil Rights Act of 1964, as amended, 42 U.S.C. $ 2000e-2(c)(2), provides It shall be an unlawful employment practice for a labor organization to limit, segregate or classify its membership . in any way which would deprive or tend to deprive any individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect his status as an employee because of such individual's sex I believe that Congress has entrusted enforcement of the Civil Rights Act of 1964 to the Equal Employment Opportunity Commission. While enforcement of our Act should not conflict with other Federal labor laws or policies, we should not usurp the functions of other Agencies APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain locals whose member- ships are determined by sex. WE WILL NOT refuse to process grievances of unit employees because of the sex of the employ- ee. WE WILL NOT separately process the grievances of male and female unit employees. WE WILL merge our respective locals. WE WILL allow into membership any unit member without regard to sex. WE WILL process the grievance of any unit member without regard to sex. LOCAL 106, GLASS BOTTLE BLOWERS 947 WE WILL NOT in any like or related manner restrain or coerce employees of Owens-Illinois, Inc., in the exercise of the rights guaranteed by Section 7 of the Act. LOCAL No. 106, GLASS BOTTLE BLOWERS ASSOCIATION , AFL-CIO (Labor Organization) Dated By (Representative) (Title) LOCAL No. 245 , GLASS BOTTLE BLOWERS ASSOCIATION, AFL-CIO (Labor Organization) Dated By (Representative) (Title) FINDINGS AND CONCLUSIONS I. THE UNFAIR LABOR PRACTICES A. Background In 1949, the parent international union, the Glass Bottle Association of the United States and Canada, entered into a contract with the Owens-Illinois Company. From the outset of the contractual relationship there have been two separate Locals which serviced the agreement. Local 106 which confines its membership only to men. Local 245 confines its membership only to women. There are approximately 800 male employees and approximately 370 female employees. The successive contracts are negotiated: ... by and between the Glass Bottle Blowers Association of the United States and Canada, on behalf of itself as the International Union and as Agent for and on behalf of Locals 106 and 245 . . . (the contract) is hereby approved, accepted and signed by the representative of the International Union, repre- sentative of Locals 106 and 245. . . . This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This matter was heard in Columbus, Ohio, on October 18, 1972.1 The consolidated complaint issued on July 26 based on charges filed on February 7. In sum the charges allege that both Locals have refused to admit unit employees to membership or to process their grievances solely because of the sex of the employees, in violation of Section 8(b)(1)(A) of the Act. Respondents' answers deny the commission of any unfair labor practices alleged, but admit allegations of the complaint sufficient to support the assertion of jurisdiction under current standards of the Board (gross outflow volume of business in excess of $50,000 annually). The answer further admits that the Union involved is a labor organization within the meaning of Section 2(5) of the Act. Upon the entire record in the case, from my observation of the witnesses , and after due consideration of the briefs submitted by the parties to this proceeding, the Adminis- trative Law Judge makes the following: There is only one unit and it covers all the employees described in it as "hourly paid employees" regardless of the sex of the members. B. The Facts Respondent Union, in its brief, is at pains to point out the following salient facts all of which are supported by the record: (1) In negotiations for collective bargaining con- tracts the Union is represented by the International Union and committees of both locals. The bargaining sessions are joint affairs equally participated in by both Locals and the International Union. (2) There is a single seniority list covering all the job classifications of all the employees in the unit. (3) In the event there is a departmental dispute concerning, for example, an overtime problem, when the matter is settled all the affected employees (both men and women) are compensated with the same amount of pay. This is so whether the grievance is initiated by a male or female employee. (4) All employees whatever their sex are equally entitled and do avail themselves of the full grievance procedure. (5) At and after the second step of the grievance procedure both locals exchange memoranda of the meetings held on the matter. (6) The Company's labor relations director testified that while there is no contractual prohibition prevent- ing representatives of both Locals to be present at the processing of grievances as a matter of past practice such attendance has not occurred. The Employer has no objection to joint presence it just has not happened. (7) Both presidents of the locals testified that they I All events took place in 1972 unless otherwise indicated 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frequently consult with each other on problems that have been brought to their attention. (8) After a contract has been negotiated ratification takes place by both Locals in anoint meeting. Janet Coleman, president of Local 245, testified that the women do not want to be melded into one huge local for fear of losing their identity since the men outnumber the women by more than two to one . As she put it, the women do not want to lose their "clout." C. The Contentions of the Parties The General Counsel appears to proceed on the theory that the mere existence of separate locals whose member- ship is determined solely on sex is a per se violation of the Act. The Respondent Union takes the position that there is no authority for the General Counsel's theory that the case is one of first impression and further that absent a showing of invidious discrimination based on sex there is no violation of the Act. The General Counsel argues that the Hughes Tool Case, 147 NLRB 1573, which involved the existence of a white and black local, is analagous to the case at bar. The gravamen of that case was that the union failed to process the grievance of a black man, Ivory Davis. The facts in Hughes Tool are not the same as the case at bar and therefore the citation is not apposite. I am persuaded by the rationale of Respondent Union as set forth in its brief: . .. the cases teach us that there must be invidious treatment and derogation of the employment status of employees that interferes with the Section 7 rights of those employees, (see Miranda Fuel Co., 51 LRRM 1584). . . . Nowhere was there any indication that results of the grievance machinery were invidious. It mattered not, on the basis of this record, which local union processed a given grievance. My research did not reveal a complaint case decided by the Board in which a union was found to have discriminat- ed against an employee because of sex. However, in the recent representation case of Washington Sheraton Corpora- tion t/a Sheraton Park Hotel & Motor Inn, 199 NLRB No. 104, decided on October 13, 1972, the employer alleges the intervenor should be denied the opportunity to seek certification in that it unlawfully engaged in discrimination because it separately classifies and segregates male and female members and employees. In that case the Board held: In our opinion, the evidence adduced at the hearing fails to support the Employer's claim that the Interve- nor engages in unlawful sex discrimination... . However, it is well established that certification of a union does not give it license to engage in discriminato- ry practices. Accordingly, any certification which may eventuate as a result of this Decision is subject to revocation upon a showing that the certified represent- ative has not complied with its statutory duties relative to equal representation of all employees in the unit.2 While the record in the instant case, contains no evidence that either local discriminates against employees in the unit because of sex, if such an event should occur in the future the Board would revoke the certification of such a union. Having noted the Board's assurance of revoking the certification of the Union in the event of any future violation based on sex discrimination and the further fact that the record in the instant case is devoid of any violations of the Act I recommend that the case be dismissed. [Recommended Order omitted from publication.] 2 American Mailing Corporation, 197 NLRB 246