Hawkins Construction Co.

HAWKINS CONSTRUCTION COMPANY 965 Hawkins Construction Company and International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 21. Case 17-CA-5589 May 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 16, 1974, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings , findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.3 relevance and weight to be accorded, under the circumstances of any given case, to statistical evidence of the type introduced herein. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case, held on November 14, 1973 , is based upon charges filed on April 9, 1973, by International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No . 21, herein called the Union, and a complaint issued on July 6, 1973, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 17, alleging that Hawkins Construction Company, herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the National Labor Relations Act, herein called the Act. The Respondent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record,' from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 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 Administrative Law Judge and hereby orders that the Respondent , Hawkins Con- struction Company, Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A . 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 Like the Administrative Law Judge, we find that the evidence does not establish a prima facie case of racial discrimination by the Union and that, hence, it is unnecessary for us to pass on the Respondent 's contention that "the Union because of its unwillingness to correct past practices of racial discrimination cannot use the remedial machinery of the Board " We therefore do not adopt, nor do we find it necessary to reach or pass on, the comments in sec III of the Administrative Law Judge 's Decision wherein he states, inter aura, that were the Board to find that the Union was engaging in racial discrimination in selecting its membership, the Board would be required as a matter of national and statutory policy to find that the Union is not the exclusive bargaining representative of Respondent's employees and should dismiss the complaint 3 Chairman Miller also wishes to record that he specifically reserves judgment on two other issues on which the Administrative Law Judge appears to have reached certain legal conclusions . First , the issue of under what circumstances evidence of a possible violation of Title VII of the Civil Rights Act of 1964 by a union is adequate to establish what the Chairman regards as probably the only legitimate reason for withholding a bargaining order in this context-i e, a current, continuing, and otherwise irremediable propensity on the part of the union to fail to meet its constitutional obligation of fair representation , and secondly, the question of the Hawkins Construction Company, the Respondent, a general contractor in the building and construction industry, maintains its principal place of business in Omaha, Nebraska. In the course and conduct of its business, the Respondent annually purchases supplies and materials valued in excess of $50,000 directly from suppliers located in States other than Nebraska. The Respondent admits it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits that International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No . 21, the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES If the Respondent, as alleged in the complaint , violated Section 8(a)(5) and (I) of the Act by refusing to furnish the Union with certain information, this case presents the further issue of whether the Respondent, as a matter of law, can defend on the ground that the Union practices racial discrimination and, if this is a proper defense, whether the evidence establishes a case of racial discrimi- nation by the Union. IV. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent, a general contractor in the building and construction industry, is a member of the Omaha Building Contractors Employers Association , herein called i The transcript of the record is corrected in accordance with the General Counsel's unopposed motion to correct the transcript. 210 NLRB No. 152 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Association, which maintains its principal place of business in Omaha, Nebraska. The Association represents its several employer-members for purposes of collective bargaining with various craft unions, including the Union. The most recent collective-bargaining agreement negotiat- ed by the Union with the Association is effective from June 1, 1971, until June 1, 1974, and covers all of the ironworkers (journeymen and apprentices) employed by the various employer-members of the Association within the territorial jurisdiction of the Union. The Union, in other words, is the exclusive collective-bargaining repre- sentative of the ironworkers employed by the members of the Association in a multiemployer bargaining unit. The Association' s contract with the Union does not contain a so-called hiring hall agreement but when the Respondent needs ironworkers, in virtually every instance, it hires them through the hiring hall operated by the Union. Three ironworkers who have been referred in the past by the Union to the Respondent and employed by the Respondent are Sherman Thomas, Jim Thomas, and Donald Horton. The instant case stems from the Respon- dent's refusal to continue to employ these three ironwork- ers. On February 27,2 the Respondent, by letter, notified the Union "When [Respondent] orders men from your hall we do not want [Sherman Thomas, Jim Thomas and Donald Horton] sent to any of our jobs," explaining, "we have worked these men in the past and their work has been unsatisfactory." On March 19, the Union, by letter to the Respondent, requested "the dates and projects where work of the [three named ironworkers] has been determined as unsatisfacto- ry," explaining to Respondent that this information was necessary for the Union to properly and efficiently administer the Association contract on behalf of the employees it represented. On April 4, the Respondent, by letter, declined to furnish this information to the Union. The Respondent's executive vice president, Willis Epstein, acknowledged the receipt of the Union's request for the information and, in response, informed the Union, "I refer you to our letter of February 27 at which time I gave you the reason for not wanting these men in that their work in the past has been unsatisfactory." On April 6, the Union, at the first step of the grievance machinery contained in the Association contract, filed a grievance over the Respondent's refusal to employ the three named ironworkers.3 On May 1, at the first-step grievance meeting called to discuss the Union's grievance, the Union renewed its earlier request for information, explaining to the Respondent's representatives that the Union wanted to speak with the job superintendents employed on the involved projects to determine the validity of Respondent's position. The union representative at the meeting further explained that the Union's duty as the ironworkers' bargaining representative obligated it to investigate the Respondent's position after which the Union would independently determine whether the work of the employees was unsatisfactory and then decide the Union's course of action regarding the grievance it had 2 All dates herein, unless otherwise specified, refer to 1973. 3 The Association contract contains a grievance procedure which filed. The Respondent once again refused to furnish this information for the reason, stated to the Union' s represent- atives by the Respondent's vice president, Epstein, that this was not the Union's "prerogative." At the hearing, Epstein, who made the decision not to furnish the Union with the requested information, when asked why Respondent refused to furnish the Union with the information, testified, "I felt that unsatisfactory is a satisfactory reason as far as the employer is concerned for not wanting people employed." In other words, in the eyes of the Respondent, the Union had no right to information which would enable it to determine whether Respondent's refusal to employ the three ironworkers was justified. The law is to the contrary. It is settled that the collective-bargaining duties imposed on an employer by Section 8(a)(5) and 8(d) of the Act include the obligation to supply the employees' representa- tive with information relevant and necessary to the intelligent discharge of its function as bargaining agent. "There can be no question," the Supreme Court has observed, "of the general obligation of an employer to provide information that is needed by the bargaining representative [of his employees] for the proper perform- ance of its duties," and this obligation "extends beyond the period of contract negotiations and applies to labor- management relations during the term of an agreement." NL.R.B v. Acme Industrial Co., 385 U.S. 432, 435-436 (1960). See also N. L. R. B. v. Twin City Lines, Inc., 425 F.2d 164, 167-168 (C.A. 8, 1970). And it is equally settled that the Board "in aid of the arbitral process" may require disclosure by an employer of information "necessary .. . to enable [a] union to evaluate intelligently grievances filed" or contemplated, and thus "sift out unmeritorious claims." N.L.R.B. v. Acme Industrial Co., supra at 435, 437-438. For, as the Supreme Court explained in Acme: Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as griev- ances had to be processed through to arbitration, the system would be woefully overburdened. Yet this is precisely what the respondent's restrictive view would require ... . Consequently, a union is entitled to information necessary "to determine whether or not there [is] any basis for employee complaints . . . and, therefore, whether or not the union should file or support a grievance . . ." J. I. Case Co. v. N.L.R.B., 253 F.2d 149, 155 (C.A. 7, 1958). "With such information the union is in a better position to advise an employee about his rights, to reject those employee claims which are not supported by the facts, and to protect the rights of employees generally in properly administering the contract." Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746, 753 (C.A. 6, 1963). On the other hand, by preventing a union from acquiring information necessary "for an intelligent appraisal of its right to grieve," an employer is "in essence, requiring it to play a game of blind culminates in binding arbitration by an impartial arbitrator and covers "such subjects as are of interest to either or both parties " HAWKINS CONSTRUCTION COMPANY man's bluff." N.L.R.B. v. Acme Industrial Co., supra at 438, footnote 8. Under the Supreme Court's holding in Acme, supra, there can be no doubt that the Union herein is entitled to the information requested in its letter of March 19 which "would be of use to the Union in carrying out its statutory duties and responsibilities" (385 U.S. at 437). The Union, in carrying out its statutory role as the employees' exclusive bargaining representative, requested certain information which would enable it to evaluate the bona fides of the Respondent's decision to discontinue employing three employees because their work was supposedly not satisfac- tory. The Respondent does not question the applicable legal principles set out above, but in its posthearing brief argues that it was not required to disclose the requested informa- tion because "[the information] is not relevant or necessary to the Union's obligation to administer its collective bargaining agreement." More specifically, the Respondent argues that the Union has waived its right to insist upon disclosure of information as to the discharge or refusal to employ ironworkers, through having contractually commit- ted the prerogative of discharging employees solely to Respondent's managerial discretion. I think sound reasons exist for rejecting this contention. The contractual arbitration provision appears sufficient- ly broad to encompass the Union's grievance. The contractual arbitration obligation reaches "such subjects as are of interest to either or both parties," and the Company's refusal to reemploy the three ironworkers is plainly such a subject. On its face, this contractual language admits of only one interpretation: that the Union's grievance is arbitrable. Respondent attempts to avoid this conclusion by reference to the section of the contract covering "job stewards" which specifically gives the Union the right to grieve over the discharge of a steward. This, insists the Respondent, "quite clearly authorizes the discharge of any other employee for any reasons." I disagree. Viewed most favorably for the Respondent, the portion of the contract dealing with the discharge of job stewards creates at most an ambiguity in the agreement which must be resolved in favor of the arbitrability of the Union's grievance. The Supreme Court has stated in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 564, that "[d]oubts should be resolved in favor of coverage." 363 U.S. 582. Thus, "[i]n the absence of any express provision excluding [the Union's grievance] from arbitration, [11 think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad." Id. at 585. Since the contractual provision dealing with the discharge of a job steward does not constitute an express exception to the broad coverage of the grievance-arbitration machinery, it follows that the Union's grievance over the Company's refusal to reemploy the three ironworkers must be deemed to fall within the broad arbitration clause. Another reason for rejecting Respondent's contention is 4 The Respondent's vice president, Epstein, who was present at this meeting, voiced no such objection about the meeting or the grievance His %7 that its interpretation of the contract is not supported by the conduct of the Association, the party that negotiated the contract on behalf of Respondent. The Association acknowledged the Union's request for a first-step grievance meeting over the Respondent's refusal to reemploy the three ironworkers, the Association's representatives subse- quently held such a meeting with the Union's representa- tives, and at no time did the Association refuse to discuss this grievance or indicate that the grievance was not covered by the contract's grievance-arbitration procedure.4 Based on the foregoing, I am of the opinion that the information requested by the Union in its letter of March 19, 1973, was relevant and necessary to the intelligent discharge of its function as exclusive bargaining agent, and that the Respondent by refusing to provide the Union with the information violated Section 8(a)(5) and (1) of the Act, provided Respondent's affirmative defense of racial discrimination is without merit. Respondent contends that "the Union, because of its unwillingness to correct past practices of racial discrimina- tion, cannot use the remedial machinery of the National Labor Relations Board," citing N.L.R.B. v. Mansion House Center Management Corporation, 473 F.2d 471 (C.A. 8, 1973). The Board in Mansion House (190 NLRB 437) found that the respondent employer violated Section 8(a)(3) and (1) of the Act by discharging eight employees because they had signed union authorization cards. The Board further found that, in view of these unfair labor practices, the employer's subsequent refusal to recognize and bargain with the union, which had obtained a card majority, violated Section 8(a)(5) and (1) of the Act, under the principles approved by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). The respondent employer, however, insisted that the union was not entitled to a bargaining order because it practiced racial discrimination in admitting persons to membership. The Board rejected this defense for the reason that the employer's offer of proof was insufficient to demonstrate such racial discrimination. The Court of Appeals for the Eighth Circuit, the circuit in which the Respondent in this case does business, upon application for enforcement of the Board's Order sustained the Board's findings that the employer violated Section 8(a)(3) of the Act, but it retained jurisdiction over the 8(a)(5) portion of the case pending supplemental briefs on the company's affirmative defense of alleged racial discrimination. N.L.R.B. v. Mansion House Management Corp., 466 F.2d 1283 (C.A. 8, 1972). In its second opinion, N.L R.B. v. Mansion House Center Management Corporation, 473 F.2d 471 (C.A. 8, 1973), the court, briefly stated, held that the Board had erred in its evaluation of the evidence presented by the employer in its offer to prove that the union practiced racial discrimina- tion. The case was remanded to the Board "with direction that the company should be given leave to adduce further proof on its tendered defense [of racial discrimination]." (Supra, at 477.) On the question of the Board's authority to require an employer to bargain with a labor organization if that sole objection was directed against the Union's request for information 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization practices racial discrimination, the court stated that it was well settled that "any recognition or enforcement of illegal racial policies by a federal agency is proscribed by the Due Process Clause of the Fifth Amendment" (supra at 473), and that the Board in Hughes Tools had previously given "recognition to these principles by directly holding that unions which exclude employees from membership on racial grounds may not obtain or retain certified status under the Act" (supra at 473). In the court's opinion the employer's defense that the union practiced racial discrimination was a "relevant area of inquiry for the Board" when the "defense is appropriately raised ..... (supra at 474). The court summarized its holding on this point in these words (supra at 477): ... we hold the remedial machinery of the [Act ] cannot be available to a union which is unwilling to correct past practices of racial discrimination. Federal complicity through recognition of a discriminating union serves not only to condone the discrimination, but in effect legitimizes and perpetuates such invidious practices. Certainly, such a degree of federal participa- tion in the maintenance of racially discriminatory practices violates basic constitutional tenets. On the question of what constitutes evidence of racial discrimination in a Board proceeding, the court in Mansion House differed with the Board as to the standard of proof necessary to make out a prima facie showing that the union was guilty of racial discrimination . The Board had held that it was not enough for the employer to demonstrate a racial imbalance in the union's membership but that it was necessary to prove that the union was refusing to admit nonwhites to membership (190 NLRB 437, fn. 3). The court, on the other hand, applying the principles which have been developed in Title VII and other civil rights cases, held that where statistical proof indicates a present racial imbalance in the union's membership it establishes a prima facie case of racial discrimination and the burden fell on the union to either rebut this inference or to establish that it had taken the initiative to affirmatively undo its past discriminatory practices (473 F.2d at 475-477).6 The court's holding is consistent with the great weight of authority that statistical evidence of racial imbalance is sufficient to establish a prima facie case of racial discrimi- nation in employment or union membership. See, general- ly, "Employment Discrimination: Statistics and Prefer- ences Under Title VII," 59 Virginia Law Review 463 (1973). As the Court of Appeals for the Ninth Circuit has stated in United States v. Iron Workers Local 86, et at, 443 F.2d 544, 551: Since the passage of the Civil Rights Act of 1964, the courts have frequently relied upon statistical evidence to prove a violation. This judicial practice has most often taken the form of the use of such data as a basis for allocating the burden of proof. On the basis that a showing of an absence of a small black union membership in a demographic area containing a substantial number of black workers raises an inference that the racial imbalance is the result of discrimination, the burden of going forward and the burden of persuasion is shifted to the accused, for such a showing is enough to establish a prima facie case (cases cited). In many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by the employer or union involved .... Of course, as is the case with all statistics, their use is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn. It is our belief that the often-cited aphorism, `statistics often tell much and Courts listen', has particular application in Title VII cases. In my opinion there is no valid justification for sanctioning a different standard of proof of racial discrimination in a Board proceeding than is utilized for a Title VII or other civil rights proceeding concerned with the same question. Accordingly, in evaluating the Respon- dent's defense of racial discrimination and in allocating the burden of proof, I have been guided by the principles enunciated by the courts in Mansion House and Iron Workers Local 86. Respondent contends that statistics show a racial imbalance in the Union's membership which prima facie proves a practice of racial discrimination, thereby shifting the burden to the Union to show what action it has taken to affirmatively undo the discrimination. I shall evaluate the relevant evidence. 1. The Union's territorial jurisdiction is identical with the 63 Nebraska and Iowa counties covered by the Association contract and are named in the contract. The Union's records as of November 12, 1973, establish that of a total union membership of 466, 11 were minority group persons. In other words, 2.4 percent of the Union's membership is comprised of minority group persons. In S Independent Metal Workers Union Local No I ( Hughes Tool Co.), 147 affording a respondent an opportunity to rebut such evidence. This NLRB 1573 ( 1964). approach was not adopted by other courts and appears to have been 8 In Parham v Southwestern Bell Telephone Co, 433 F.2d 421, the Court abandoned by the court in Mansion House, as well as in Marquez v. Omaha of Appeals for the Eighth Circuit indicated it would give conclusive weight District Sales Office, Ford Division, 440 F 2d 1157 (C.A. 8), wherein the court to statistics which showed an extraordinary racial imbalance, without stated that some particularly incriminating statistics were evidentiary rather than dispositive per se HAWKINS CONSTRUCTION COMPANY 969 comparison, 3.3 percent of the total population in the Union's territorial jurisdiction are minority group persons.? This disparity does not cry out discrimination and is not substantial enough to make out a prima facie case of racial discrimination .8 Cf. Griggs v. Duke Power Co., 401 U.S. 424, where the Supreme Court focused on a general intelligence test that had rendered "ineligible a markedly disproportionate number of negroes." [Emphasis supplied.] Id. at 429. 2. The area of Omaha, Nebraska, referred to by the "Nebraska Census" as the Omaha Standard Metropolitan Statistical Area, which for the sake of convenience is hereafter designated as Greater Omaha, includes the Nebraska counties of Douglas and Sarpy and the Iowa county of Pottawattamie, and is by far the largest urban area in the Union's territory. Of the work available for the Union's membership, 70 percent is in Greater Omaha. According to the "Nebraska Census" (table 16 at p. 47), of which I take official notice, the total population of Greater Omaha includes 7.4 percent minority group persons .9 Respondent proved the Union's total membership as of November 12, 1973, but failed to show the number of members in Greater Omaha. This failure of proof makes it impossible to determine whether at that time there was racial imbalance in the Union's membership in Greater Omaha. But, since 70 percent of the work performed by the Union's membership is located in Greater Omaha, the Respondent urges that 70 percent of the Union's member- ship on November 12, 1973 (70 percent of 466 which equals 326), equals the number of members in Greater Omaha and, assuming all 11 minority group members reside in Greater Omaha,10 it establishes that 3.3 percent of the Union's membership in Greater Omaha were minority group persons. Then, so the argument goes, since 7.4 percent of the population in Greater Omaha are minority persons, this demonstrates a substantial imbalance of minority group membership in the Union for Greater Omaha. I reject the Respondent's argument for I am unable to draw the required inference. In my opinion, there are insufficient proper supportive facts in the record to arrive at the racial mix in November 1973 of the Union's membership in Greater Omaha.11 An inference of the r In arriving at the total population and racial mix of the Union's territorial jurisdiction , I have taken official notice of the "U S. Department of Commerce, Bureau of the Census, 1970 Census of Population , General Population Characteristics , B 29 Nebraska and B 17 Iowa (August 1971)," herein for convenience designated as the "Nebraska Census" and the "Iowa Census" and collectively as the "Census." See Parham v Southwestern Bell Telephone Co. 433 F 2d 421 at In 4 (C.A. 8). The total population, including the racial mix for each county in the Union's territory is set out in the "Nebraska Census" at table 34 , pp 102- 104 and in the "Iowa Census" at table 34 pp 142-144 A tally of the population and racial mix in the 54 Nebraska and 9 Iowa counties in the Union's territory reveals a total population of 1,410,197, of whom 46,783 or 3.3 percent are minority group persons, nonwhite The Respondent's posthearing motion that I take official notice of certain general population figures for the Union's territory and the part of this territory referred to later in this Decision as Greater Omaha is granted I have carefully compared Respondent's figures taken from the World Almanac with the "Census" and find that they are essentially the same " The addition of approximately four minority persons as union members would completely eliminate the racial imbalance 9 Certain documents which were introduced into evidence show a different percentage of minority group persons in Greater Omaha. The Union's total membership in Greater Omaha based on the percentage of the available work performed in Greater Omaha would be sheer speculation. Instead, why not as reasonably assume that the Union's membership in Greater Omaha is in the same proportion as the population in Greater Omaha is to the population in the Union's entire territory, which percentage, according to computa- tions based on the "Census," is 38.3 percent, 12 substantial- ly smaller than the figure of 70 percent proposed by the Respondent. The Respondent which has the burden of proof on this issue could have secured the best evidence of the number of union members in Greater Omaha from the Union's own records but failed to do this. Such records are presumably available but in all probability are unfavorable to the Respondent's position. Thus, in connection with programs sponsored by the United States Department of Labor designed to encourage the recruitment and employ- ment of minority persons in the construction industry in Greater Omaha, the Union presented in writing, Respon- dent's Exhibits 5 and 11,13 that on January 31, 1972, and on June 8, 1972, there were 220 union members in Greater Omaha, of whom 13 were minority persons. According to the Union, about 6 percent (5.9 percent) of its membership in Greater Omaha were minority persons. When compared with the racial mix of 7.4 percent of minority persons in the general population of Greater Omaha, this does not, in my opinion, establish a degree of racial imbalance substantial enough to make out a prima facie case of racial discrimina- tion.14 In addition, the figure of 220 members for Greater Omaha submitted by the Union to the United States Department of Labor is further evidence that it would be sheer speculation to infer, as Respondent urges, that in November 1973 there were 326 union members in Greatbf Omaha.15 Based on the foregoing, I conclude that the record is insufficient for me to make a finding that there was a substantial racial imbalance in the Union's Greater Omaha membership in November 1973 and further conclude that the racial imbalance in the Union's membership in Greater Omaha for the period from January 30, 1972, through June 8, 1972, was not of such a degree to establish that the Union was discriminating against minority persons. official U S. census, however, is the best evidence on this point. Accordingly. I have not relied upon these other figures. 10 Since 40,000 of the 46,783 minority group persons within the Union's territorial jurisdiction reside in Greater Omaha, this is not an unrealistic assumption . See "Nebraska Census," table 23 at p 63, and table 34 at p. 102. "Iowa Census," table 34 at p 142. 11 "Of course, as is the case with all statistics , their use is conditioned by the existence of proper supportive facts " United States v Iron Workekt Local 86, et al, 443 F 2d 544, 551 (C A 9) 12 This percentage is derived from the population figures for the counties in the Union's territorial jurisdiction "Nebraska Census," table 34 at pp. 102-104, and "Iowa Census." table 34 at pp. 142-144. 13 The Respondent placed these documents into evidence and the record as a whole does not demonstrate that the figures contained therein pertaining to the Union's membership and minority members in Greater Omaha were false at the time the documents were executed w The addition of approximately three minority group persons as union members in Greater Omaha would completely eliminate any racial imbalance. 15 Based on Respondent's theory, described above, that 70 percent of the Union's total membership of 466 resides in Greater Omaha 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Union with the Association administers an apprenticeship program under the supervision of the U.S. Department of Labor's Bureau of Apprenticeship and Training (BAT). On June 8, 1972, the Union and the Association, in compliance with Title 29 of the Code of Federal Regulations, Part 30, agreed to provide equal opportunity standards for the selection, training and employment of apprentices and to take certain affirmative action to provide equal opportunity for minority persons to become apprentices. There is no evidence to refute the testimony of the Union's business agent, Gordon McDo- nald, that the apprenticeship program is operated on a nondiscriminatory basis in accordance with the standards established by BAT. The record establishes that the Joint Apprenticeship Committee has actively sought out minori- ty applicants. McDonald, in his capacity as chairman of the Joint Apprenticeship Committee, in June 1972 and June 1973 mailed letters on the Union's stationery to numerous schools and minority group organizations stating, in substance, that the Joint Apprenticeship Committee would accept applications on certain dates and summarized the basic qualifications needed to apply for the apprenticeship program. The organizations and schools to whom McDonald mailed these letters represent minority persons or are the type of organizations which have a strong desire to further the employment opportunities of minority persons. McDonald credibly testified that these letters were sent for the purpose of encouraging and securing minority persons to apply for the apprenticeship program. In response, 5 minority persons out of a total of 80 applicants submitted applications in 1972 to the Joint Apprenticeship Committee. Of the five minority persons: one did not follow through with his application, failing to take the required interview; two failed the examination; and two were accepted into the apprenticeship program. In short, of the minority persons who applied and followed through with their applications, 50 percent were accepted into the apprenticeship program. There is no contention or evidence that the failure of the two minority persons to qualify was caused by discriminatory practices or that the failure of a greater number of minority persons to apply was caused by a belief that it would have been futile. To the contrary, as described above, the Union through the Joint Apprenticeship Committee has actively sought out minority persons and through its participation in the Omaha Hometown Plan, described below, has made it plain that it will not discriminate. 4. The Union on January 31, 1972, voluntarily entered into a so-called "hometown plan," herein called the Omaha Hometown Plan, approved and sponsored by the U.S. Department of Labor through its Office of Federal Contract Compliance (OFCC). Simply stated, the Omaha Hometown Plan is an agreement between labor, manage- ment, and the minority community, having its central purpose the increased use of minorities in the local construction industry, namely, the Omaha Standard Metropolitan Statistical Area, which for the sake of convenience has been referred to throughout this Decision as Greater Omaha. The plan establishes a program to train and recruit minority persons and establishes certain yearly numerical quotas for each union signatory. The Omaha Hometown Plan's training and recruitment program, a program which is administered by the various organizations representing minority groups who are signa- tory to the plan, establishes a public information program to be directed toward the minority community for the purpose of acquainting the minority community with training and employment opportunities for ironworkers (as well as other trades) and to persuade the community that the Union (as well as other union signatories) will not discriminate against minority persons . There is no conten- tion that this program was not implemented and main- tained during the period material to this case nor is there a contention or evidence that the Union did not cooperate with the minority group organizations in publicizing the fact that there were employment opportunities in the industry and that the Union would not discriminate against minority persons. As a matter of fact, the Omaha Hometown Plan's executive administrator, Joseph Rami- rez, on August 2, 1973, by letter, complimented the Union. In substance, Ramirez stated that the Union had cooperat- ed "in every way possible" to see that the goals and timetables of the plan were met.is Regarding the numerical quota assigned to the Union under the Omaha Hometown Plan, the Union agreed to train and refer for employment five minority group persons during its first year under the plan and a similar number of persons in each of the succeeding 4 years. The Union commenced its participation in the plan on January 31, 1972. As implemented by the OFCC, the Union had until about May 30, 1973 (a total of 16 months), to fill its quota fir the first year. During this period, the Union trained and referred for employment six minority persons, one more than its quota. But under the terms of the plan, as interpreted by the OFCC, each such referral must work a total of 30 days during the relevant time period, in this case 16 months. Of the six persons trained and referred by the Union, two did not meet this requirement. One worked 2 weeks then was laid off, through no fault of the Union, and disappeared. The second was referred to a job by the Union during the last week in May 1973 and, although still employed at the time of the hearing (November 1973), had not worked the full 30 days during the relevant period of time to have been credited toward the Union's first year quota. Despite the Union's failure to meet its numerical quota for the first year, the OFCC has not concluded that the Union has failed to comply with its obligations under the Omaha Hometown Plan.17 To the contrary, the OFCC 18 In evaluating this letter, which was received into evidence without objection, I have considered that it was initiated by the Union after the Union had been accused by the Respondent in this case of engaging in racial discrimination But the Omaha Hometown Plan's executive adminis- trator is himself a member of a minority group and, because of his administrative position, is presumably extremely protective toward the rights of the minority community I do not believe he would have written this letter complimenting the Union if the Union in fact was not fulfilling its obligations under the plan. 17 If the OFCC had made such a determination, the OFCC would no longer recognize the Union's subscription to the plan as complying with its obligation under Executive Order 11,246 dealing with equal opportunity of employment in the construction industry and would impose more stringent equal opportunity affirmative action conditions upon the Union in HAWKINS CONSTRUCTION COMPANY has indicated that it is seriously considering whether the Union's good-faith efforts to meet its quota are relevant in evaluating the Union's conduct. The record, in this case, establishes to my satisfaction that the Union, in training and referring six minority group employees during the relevant 16-month period, acted in good faith in a sincere effort to meet its quota under the plan.18 This was acknowledged by the plan's executive administrator, as described above, in his letter of August 2, 1973. To sum up, I conclude that the statistical evidence does not establish a racial imbalance in the Union's membership of a degree sufficient to establish a prima facie case of racial discrimination.19 Even assuming that the racial imbalance in the Union's membership does indicate discriminatory practices,20 I am of the opinion that it is not sufficient to prove a case of racial discrimination where, as here, the Union at all times material has made a good-faith effort to increase the number of minority persons in the trade. I am not suggesting that the defense of "good faith" would be relevant in a case involving proved past racial discrimination as contrasted to the instant case where the statistical disparity between the racial composition of the Union's membership with that of the general population was not demonstrated to have been readily identifiable as substantial. For these reasons, I conclude that the Respondent has not proved its affirmative defense of racial discrimination. In view of my finding that the evidence is insufficient to establish that the Union has engaged in past or present racial discrimination, it is not necessary to pass on the Respondent's contention that "the Union because of its unwillingness to correct past practices of racial discrimina- tion cannot use the remedial machinery of the National Labor Relations Board," citing, N.L.R.B. v. Mansion House Center Management Corporation, supra. In the event, however, that the Board disagrees with my evaluation of the evidence, I shall consider the question of whether the Board should order the Respondent to furnish information to the Union if the Union is guilty of racial discrimination in the selection of its members. In Independent Metal Workers Union, Local No. 1, et al. (Hughes Tool), 147 NLRB 1573 (1964), the Board held that under both the Act and the Constitution it was required to withhold certification as exclusive bargaining representa- tive from "unions which exclude employees from member- ship on racial grounds, or which classify or segregate members on racial grounds." (Supra at 1577-1578.) Hughes Tool, on this point, was based upon an implied duty of fair representation imposed by the Act upon unions that serve as exclusive bargaining representatives. An additional connection with Federally financed construction projects. This has not been done 18 Besides training and referring for employment the above six minority employees, the Union referred a substantial number of other minority persons to jobs who were not journeymen or apprentice Ironworkers Thus, for the 10-month period in 1973 prior to November 12, the Union referred 79 nonmembers to jobs, of whom 20 were minority group persons. 19 Respondent's case-in-chief in support of its affirmative defense of racial discrimination, as presented in its posthearing brief, is based entirely upon a racial imbalance in the Union's membership demonstrated by statistics 20 As found previously, 3.3 percent of the total population in the Union's territory are minority persons, whereas on November 12, 1973, 2 4 percent 971 ground exists for the decision. A Federal statute now expressly prohibits discrimination in union membership based on race, color, religion, sex, or national origin. A union guilty of such discrimination violates Title VII of the Civil Rights Act of 1964, Section 703(c), 42 U.S.C. Sec. 2000(e) et seq. The Board in its administration of the Act has an obligation to recognize the policies embodied in Title VII of the Civil Rights Act of 1964 which is a part of the national labor policy. This is simply a recognition of the well-established principle that the Board, as an administrative agency of the Federal Government, is the guardian of the public interest and must consider aspects of the national labor policy which relate to its determina- tions. Southern Steamship Company v. N.L R.B., 316 U.S. 31, 47 (1942); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456-458 (1957). See also, Western Addition Community Organization v. N.L.R.B., 485 F.2d 917 (C.A.D.C., 1973), where the court found a Congressional intent that the policies of the Act be accommodated to Title VII of the Civil Rights Act of 1964. In sum, it is now firmly rooted in our national labor policy-the Act which the Board administers as well as Title VII of the Civil Rights Act-that a labor organization cannot deny membership based upon a person's race or color. This right to union membership free from such discrimination is directly and significantly related to a union's role as an exclusive bargaining representative under Section 9(a) of the Act. See Hughes Tool, supra at 1600. In these circumstances, when a union in either a representation or unfair labor practice proceeding asks the Board to find that it is an exclusive bargaining representa- tive under Section 9(a), and the allegation is raised that the union excludes persons from membership because of their race or color, the Board as a matter of policy in the administration of the Act, aside from constitutional limitations upon the Board's power, should carefully evaluate this allegation and, if proven, refuse to find that such a union is an exclusive bargaining representative under Section 9(a).21 Now turning to the instant case, I have found the Respondent Employer violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with certain information. The Union's right to this information derives from its role as the employees' exclusive bargaining representative. This status stems from Section 9(a) of the Act, which is at the center of the Act if not the entire Federal labor policy. The purpose and importance of Section 9(a) have been treated at length on a number of occasions by the United States Supreme Court,22 and it has been implemented by Section 8(a)(5) and 8(d) of the Act. of the Union's membership were minority persons And from January 30, 1972, to June 8, 1972, 5.9 percent of the Union's membership in Greater Omaha were minority persons, whereas 7 4 percent of the total population in this area were minority persons 21 In reaching this conclusion , I have taken into account the "strong public policy favoring the free choice of a bargaining agent by employees." N L R B v David Butirick Co, 399 F 2d 505, 507 (C A 1, 1968), but this policy does not, in my opinion, permit the Board to ignore a showing of racial discrimination in union membership which is deemed adequate for Title V11 proceedings 22 See, e.g, NLRB v. Allis Chalmers Mfg Co, 388 U.S 175, 180 (1967), J I Case Company v N L R B, 321 U S 332 (1944) 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In implementing Section 9(a), the Board with the approval of the Supreme Court, as described in detail earlier in this Decision, has held that a union is entitled to information relevant and necessary to the intelligent exercise of its statutory role as the employees' exclusive bargaining representative. In the instant case , it is the Union's status as the employees' exclusive bargaining representative which entitles it to the requested information . The Board, as a prerequisite to ordering Respondent to furnish the Union with this information, must specifically find, as alleged in the Government's complaint, that "the Union is ... the exclusive bargaining representative of all employ- ees in the [multiemployer unit] . . . within the meaning of Section 9(a) of the Act." If, in these circumstances, the Union practices racial discrimination in its membership, as the Respondent contends, the Board, for the reasons I have set out above, should not find that the Union is an exclusive bargaining representative and should dismiss these proceedings.23 My recommendation is based on the fact that an important and integral part of our national labor policy, as expressed by Congress in enacting the Civil Rights Act of 1964, is that unions shall not discriminate in membership because of race or color. The Board may not ignore this important policy, especially since under the Act which the Board administers such discrimination is inextricably related to the status of a union as an exclusive bargaining representative under Section 9(a), and is inconsistent with the duty of fair representation which the Act requires of an exclusive bargaining representative. Finally, I do not think it necessary for the Board to decide the constitutional issue of whether , by ordering the Respondent to furnish the requested information to the Union or by finding that the Union is an exclusive bargaining representative , the Board has "significantly involved itself with invidious discrimination[s]" or has "in any way foster[ed] or encourage[d] racial discrimination" or is "in any realistic sense a partner of even a joint venturer in the [Union's] enterprise." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-179 (1972). Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Hawkins Construction Company, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 21, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. All journeymen and apprentice ironworkers em- 23 The fact that the Respondent did not suggest discriminatory practices to the Union as the reason for its refusal to furnish the requested information does not, in my opinion , preclude it from now raising this issue before the Board The Board in Mansion House did not rely on the fact that the employer there did not raise the union's alleged discriminatory racial policies as a ground for its refusal to bargain until after the charges were filed and, to my knowledge, no Board case has treated such a fact as determinative And, aside from constitutional limitations on the Board's power, the national labor policy and the Act itself , in my view, require the Board to recognize a charge of racial discrimination as an appropriate ground of inquiry where the Board must find that a union is an exclusive ployed by the members of the Omaha Building Contractors Employers Association within the Union's territorial jurisdiction, but excluding clerical and other office employ- ees, confidential employees, superintendents, assistant superintendents, timekeepers, messengers, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to furnish the Union with the information requested in its letter to Respondent dated March 19, 1973, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting com- merce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the purposes of the Act. It has been found that by refusing to furnish certain information requested by the Union in its letter of March 19, 1973, the Respondent refused to bargain collectively with the Union, and thereby interfered with, restrained, and coerced its employees. I shall recommend that Respondent furnish to the Union the information it requested in its letter of March 19, 1973. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 24 Respondent, Hawkins Construction Company, Omaha, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 21, by refusing to furnish the information requested by its letter dated March 19, 1973. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. bargaining representative The Board, however, as suggested by the court in Mansion House (473 F 2d at 474-475), may desire to promulgate special administrative procedures designed to more expeditiously handle com- plaints of alleged racial discrimination and to deter persons from raising this defense as a pretext to avoid their obligation under the Act 24 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 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 HAWKINS CONSTRUCTION COMPANY 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Furnish, upon request, to the International Associa- tion of Bridge, Structural and Ornamental Iron Workers, Local Union No. 21, the information requested in its letter dated March 19, 1973. (b) Post at its office and place of business in Omaha, Nebraska, and in other places where notices to employees represented by the aforesaid Union and covered by the Union's collective-bargaining agreement with the Omaha Contractors Employers Association are customarily posted by Respondent, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including, as described above, all places where notices to employees employed in the appropriate bargaining unit are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 25 In the event that the Board's 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 National Labor Relations Board " 973 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, furnish International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, Local Union No. 21, with the information requested in the Union's letter to us dated March 19, 1973. WE WILL NOT refuse to bargain collectively with International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 21, by refusing to furnish it with the information requested in its letter to us dated March 19, 1973. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. Dated By HAWKINS CONSTRUCTION COMPANY (Employer) (Representative) (Title) 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 compliance with its provisions may be directed to the Board's Office, 616 Two Gateway Center, Fourth At State, Kansas City, Kansas 64101, Telephone 816-374-4518.