Bekins Moving & Storage Co. of Florida, Inc.

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bekins Moving & Storage Co. of Florida, Inc. and Freight Drivers, Warehousemen and Helpers, Local Union No. 390, an affiliate of international Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 12-RC-4352 June 7, 1974 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Anthony J. DiSalvo of the National Labor Relations Board. Subsequently, the record was reopened and a further hearing was held before Hearing Officer David Kayton of the National Labor Relations Board. Following the close of the further hearing, the Regional Director for Region 12 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. The Board has reviewed the Hearing Officers' rulings made at the hearings and finds that they are free from prejudicial error. They are hereby af- firmed.' Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. The parties stipulated that the Employer is a Florida corporation having its principal place of business in Miami, Florida, where it is engaged in the business of moving and storing household goods and office equipment. The parties also stipulated that the Employer received annual gross revenues in excess of $50,000 from the transportation of goods across the borders of the State of Florida. While the Employer refused to stipulate that it was engaged in interstate commerce, it is clear from the record that the Board's jurisdictional requirements have been satisfied. 2. The labor organization involved claims to represent certain employees of the Employer. While the Employer questioned the Petitioner's status as a labor organization and its ability to adequately represent the employees in the unit sought, the record discloses that the Petitioner admits employees to membership and represents employees concerning I This includes the ruling granting the Petitioner's motion to quash the Employer's subpoena duces tecum which, for the reasons discussed Infra, we affirm. s See Carter Manufacturing Company, 59 NLRB 804; American Mailing Corporation, 197 NLRB 246; Washington Sheraton Corporation, 199 NLRB 728; N.L.R.B. v. Mansion House Center Management Corp., 473 F.2d 471 (C.A. 8, 1973). 3 "No person shall ... be deprived of life , liberty, or property, without wages, hours, and working conditions. Accordingly, it is clear that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act. The Employer also argued that the Petitioner was disqualified from seeking an election under Section 9(c) of the Act on the grounds that it engaged in invidious discrimination on the basis of sex and also against Spanish-speaking and Spanish-surnamed individuals? The Employer placed such disqualifica- tion in issue by means of a motion to dismiss and a request for a subpoena duces tecum, made at the hearing, and its posthearing brief and motion to reopen the record to receive further evidence with regard to said purported discrimination. The issue of disqualification of a labor organiza- tion on such grounds goes to the very heart of the Board's interpretation and application of the Act. We are charged with administering the National Labor Relations Act and, in doing so, we strive to expedite the holding of elections so that the wishes of employees may be determined without undue delay. However, the Employer argues that, as an agency of the Federal Government, we are subject to constitu- tional limitations on our administration of the Act, notably the restraints on the exercise of our authority imposed by the due process clause of the fifth amendment .3 It also maintains that this Agency has a duty to carry out our administration of this statute with due regard to other aspects of Federal labor policy as expressed in other statutory enactments such as Title VII of the Civil Rights Act of 1964, as amended in 1972. Thus, the issue presented, in light of the foregoing comments, is whether the Board may or should issue a certification to a labor organization without considering an objection that challenges the labor organization's capacity to fairly represent unit employees. The Board will consider the merits of such an objection prior to issuance of a Board certification, but only after the election has been held and then only if the labor organization involved has won the election. The due process clause of the fifth amendment is a limitation upon the actions of the Federal Govern- ment; it does not apply to private persons.4 It forbids the participation in, and the actual practice of, invidious discrimination by the Federal Govern- ment.5 Were we, as an arm of the Federal Govern- ment, to confer the benefits of a certification upon a labor organization which is shown to be engaging in due process of law ...." 4 Public Utilities Commission of the District of Columbia v. Pollak, 343 U.S. 451, 461-462 ( 1952). 5 Boiling v. Sharpe, 347 U.S. 497, 499-500 (1954); Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944); Wallace Corporation v. N.L.RB., 323 U.S. 248 (1944); Tunstall v. Brotherhood of Locomotive Fireme , 323 U.S. 210 (1944); Brotherhood of Railroad Trainmen v. Howar4 343 U.S. 768 ( 1952). 211 NLRB No. 7 BEKINS MOVING & STORAGE CO. 139 a pattern and practice of invidious discrimination, the power of the Federal Government would surely appear to be sanctioning, and indeed furthering, the continued practice of such discrimination, thereby running afoul of the due process clause of the fifth amendment.6 Moreover, such action on our part would clearly be anomalous in view of the Federal Government's express policy against such discrimi- nation and the many laws which prohibit it.7' Accordingly, a precertification inquiry as to a labor organization's willingness and capacity to represent employees on a fair and equal basis seems to us to be both appropriate and constitutionally required if such issues are raised by a timely motion. Our colleagues argue that the Board lacks the power to withhold a certificate from a union which has won an election. They base this argument on the mandatory terminology contained in the Act. The difficulty with the argument is that the Supreme Court has held repeatedly that neither the Federal nor the state governments may take any action in furtherance or support of, or assistance to, any forms or practices of discrimination. Bolling v. Sharpe, 347 U.S. 497; Shelley v. Kraemer, 334 U.S. 1. The Supreme Court has also held repeatedly that a Federal statute authorizing the grant to a labor organization of the right to bargain exclusively for employees would run afoul of the Constitution unless construed to impose upon such organization the duty to represent and bargain equally and fairly for all employees, and that Federal statutes conferring this authority must, whatever their language purports to require, be construed to impose on the union this obligation of equal representation. Steele, Tunstall, Wallace, and Howard, supra. Thus, the "mandatory" language of the Act on which our colleagues rely must also, we believe, be construed in harmony with these same constitutional requirements. We do not believe it is in harmony with those requirements for this Board to take any action which would have the clearly foreseeable effect of supporting or assisting a union which can be shown to have engaged in invidious discrimination.8 To construe the mandato- ry language of the statute without reference to these constitutional issues would cause the statute itself to fall afoul of the constitutional limitations set out in Steele and other cases cited above. Thus what the Board lacks is not the statutory 6 Gautreaux v Romney, 448 F 2d 731, 737-738 (C A 7, 1971), Green v Connally, 330 F Supp 1150, 1164-65,1169 (D C D C, 1971), affd 404 U S. 997 (1971 ), Simkins v Moses H Cone Memorial Hospital, 323 F 2d 959, 969-970 (C.A. 4, 1963), cert denied 376 U.S 938 ( 1964). 7 See Southern Steamship Co v N L R B, 316 U S 31, 47 (1942) Also see Title VII of the Civil Rights Act of 1964, as amended 1972, 42 U.S.C. § 2000(e), et seq, Civil Rights Act of 1866, 42 U S C § 1981; Equal Pay Act of 1963, 29 U S.C. § 206(d), Age Discrimination in Employment Act of power to withhold the certificate, but rather the constitutional power to confer it. We do not disagree substantially with the view that we should not undertake the enforcement of statutes which Congress has given to other agencies to administer. While the Board must interpret the Act with due regard for Federal policy against racial or other arbitrary or invidious discrimination, we should not attempt to usurp the functions which Congress entrusted to the Equal Employment Oppor- tunity Commission and other agencies . On the other hand, it seems clear to us that this Board cannot constitutionally certify a labor organization which is shown, as Member Kennedy posits, to be engaging in practices such as excluding persons from member- ship on the basis of race, alienage, or national origin, which, if encouraged by a certification, would put us in the constitutionally indefensible position of knowingly furthering those practices which are prohibited by both constitutional and statutory provision. Nor can we constitutionally certify a union which is shown to have a propensity to fail fairly to represent employees. Our constitutional considera- tions may, in this respect, be somewhat broader than those expressed by Member Kennedy. For we understand the duty of fair representation to be rooted in the Constitution as well as the statute. As the Court of Appeals for the Fifth Circuit said in Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO v. N.L.R.B., 368 F.2d 12, 17: Indeed, the Supreme Court had indicated that any statute purporting to bestow upon a union the exclusive right to represent all employees would be unconstitutional if it failed to impose upon the union this reciprocal duty of fair representation. It will thus be our task, on a case-by-case basis, to determine whether the nature and quantum of the proof offered sufficiently shows a propensity for unfair representation as to require us, in order that our own action may conform to our constitutional duties, to take the drastic step of declining to certify a labor organization which has demonstrated in an election that it is the choice of the majority of employees. It is not our intention to take such a step lightly or incautiously, nor to regard every possible 1967, 29 U S C § 623, et seq, Executive Order 11141, 29 F R 2477 (1964), Executive Order 11246, 30 F R 12319 (1965), as amended by Executive Order 11375, 22 F.R. 14303 (1967); Executive Order 11478, 34 F R 12985 (1969); § 19(b)(5) of Executive Order 11491, 34 F R 17905 (1969) 8 We do not at this time, in this opinion, purport to decide what degree or form of invidious discrimination would be sufficient to warrant disqualification of a union from receiving or retaining certification 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged violation of Title VII, for example, as grounds for refusing to issue a certificate. There will doubtless be cases in which we will conclude that correction of such statutory violations is best left to the expertise of other agencies or to remedial orders less draconian than the total withholding of repre- sentative status. To reconcile these views with a full awareness of our own constitutional responsibilities will, we recognize, not always be an easy task, but the difficulties involved do not entitle us to shrug off our oath to uphold and defend the Constitution of the United States. Our colleagues' argument that the discriminating union should be given the opportunity to bargain and to show thereby that it has "reformed," or that its new members in the new unit should be given the chance to "reform" it does not offer sufficient assurance that, in the event of the issuance of a certificate to a union as yet clearly unreformed, such a union would exercise the powers given to it in a manner consonant with its duty of fair representa- tion. For this reform or demonstration can come about only through the union's actions in represent- ing the employees; and in the view of our Act, a Federal instrumentality, conferring exclusive repre- sentation rights upon a union whose history is one of invidious discrimination among its membership is itself unlawful. To grant such a union certification as exclusive bargaining representative would grant it an opportunity for further unlawful invidious discrimi- nation. To decline to lend governmental, sponsorship and approval to it is not to "eliminate the institution of collective bargaining" or to "throw out the baby with the bath," but is only to recognize our obligation to construe our statute in light of the Constitution and thus to grant the power of exclusive representation only to a labor organization which has not shown open disregard for its duty to represent all employees without invidious discrimination. The union and its members have it within their own power to meet this obligation by eliminating the discrimination, if it has occurred in the past, before-not after-coming to this Agency to seek a federally conferred certificate. In urging a policy of immediate certification, our colleagues argue that numerous beneficial effects will result from such a practice or policy. The simple answer to such arguments is one we have already made; namely, that as an agency of the Federal 9 Supra. 10 Supra. 11 The same may be said for the argument that the granting of certification would give bargaining unit members rights enforceable under our Act and the Civil Rights Act of 1964. Employees have these rights by virtue of the legislation creating them, but, of course , employees are not likely to seek legal redress until such time as they feel that their rights are being impinged upon. To provide the opportunity for impingement hardly Government, we are constitutionally prohibited from using our power or authority to support, sustain, or assist any person or organization shown to us to have engaged in invidious discrimination. Thus, we regard as beside the mark any curative effects which might flow from certification of a discriminatory union. However, to guard against any inference that we tacitly accept these arguments, we shall examine them briefly. Our colleagues state that the granting of a certification will impose upon the Petitioner the responsibility to act in a nondiscriminatory manner toward the bargaining unit employees. That responsi- bility has, however, already been placed on labor organizations by a long series of court decisions beginning with Steele9 and by Title VII of the Civil Rights Act of 1964.10 Of course, it can be said that the Petitioner lacks the capacity to discriminate against those it does not represent and, in this sense, a certification imposes additional responsibility. But it seems to us to be somewhat anomalous to provide the discriminator with a further opportunity to discriminate in order that we may better hold him accountable for his actions, a bit like inviting the fox into the chicken coop to have a better opportunity to watch him.11 Our colleagues apparently assume that the prohibition against discrimination does not reach a union until it is certified. Steele teaches us to the contrary, that it is the union's power to bargain for all by virtue of the statute which brings the prohibition into effect, and the duty of fair represent- ation has never been limited to certified unions. Our colleagues also argue that minority groups within the bargaining unit would benefit from the issuance of a certification because these minorities would be then in a position to act constructively towards the elimination of the labor organization's discriminatory policies. But is this not a rather strained expectation? If resort to self-help would have been likely to have eliminated discrimination, there would have been no necessity for the enact- ment of the Civil Rights Act of 1964. Further, the fact that the discriminating union was assisted by a Federal agency to become the representative of the employees could only deter the employees from looking to the Federal Government for aid against the discrimination.12 Our colleagues also propose a policy of revoking certifications where necessary in preference to qualifies as a beneficial reason for issuing a certification. 12 Our colleagues speculate that minority employees might in some circumstances vote for representation by a union which discriminates in order to be in a position to effect reforms in the policies of that organization. We think it unrealistic to assume that lifelong victims of discrimination would value so highly the representative abilities of such an organization that they would be willing to subject themselves, even temporarily, to further discrimination. BEKINS MOVING & STORAGE CO. 141 determining that the certification be withheld until the question of discrimination is resolved. Again aside from the constitutional barriers which appear to us to be insurmountable, we fail to see any practical advantage in applying a revocation ap- proach to the problem. To us, this merely delays a determination of an inevitable issue and so long as such a cloud remains over the union's status as lawful bargaining representative, true and meaning- ful good-faith bargaining would be difficult to achieve or expect. It would seem to us that it is both desirable and necessary that the union's representa- tive status be clarified as expeditiously as possible, a result which we believe is achieved through the implementation of our policy. Accordingly, a precertification inquiry, in our opinion, need not be made at the original hearing, but may be made after an election has been held and, at that time, only if the labor organization involved has received a majority of the valid votes cast and is thus, absent any showing of grounds for disqualifica- tion, prima facie eligible for certification by this Board as the exclusive agent of all employees in the unit. The Board has limited resources and an ever- increasing caseload. We attempt to give employees an opportunity to express their representational wishes through a secret ballot election with as little delay as possible. If we were to hold that the inquiry concerning the issue of disqualification was to be made at the original hearing before an election was held, we would be allocating our limited resources and time to determine an issue not yet ripe for consideration,13 we would significantly delay the holding of elections,14 and we would thus fail to effectuate the purposes and policies of the Act. Furthermore,' under Section 9(c)(1) of the Act, we would be deprived of the often necessary and meaningful recommendations of a Hearing Officer if the inquiry were made in the preelection hearing, since that hearing is only a factfinding, a nonadver- sary one.15 Unlike the original preelection hearing, a postelection hearing can, in an appropriate case, culminate in the issuance of a report and recommen- dations by a Hearing Officer, and affords the parties an opportunity to file exceptions and briefs. Limiting the litigation of the disqualification issue to the postelection hearing would thus give us the benefit of credibility resolutions, where needed, and recom- 13 We regard the issue ripe for consideration only if the labor organization involved has won the election since only at that time does the issue arise as to whether the Federal Government may or should confer upon the organization the benefits of a certification. 14 At present, in the majority of cases, an election is held within approximately 40 days after the petition is filed. 1s Secs. 101.20(c) and 101 .21(b), Rules and Regulations and Statements of Procedure, Series 8, as amended ; Monticello Charm Tred Mills, Incorporated 80 NLRB 378, fn. 2. mendations; and, at the same time, the litigants' rights to procedural due process would be fully protected. We have considered whether we ought to attempt to define through rulemaking both the procedural and substantive parameters of our future considera- tion of issues such as those sought to be raised in this proceeding. After much deliberation, we have con- cluded that we are not yet sufficiently experienced in this newly developing area of the law to enable us to codify, at this time, our approach to such issues, either procedurally or substantively. We also believe that the parties are entitled to judicial review of our determinations as to the proper scope of our duty and authority to conform our own law and proce- dures to the requirements of both the Constitution and legislation against invidious discrimination in employment. Courts of appeals have, in recent times, differed with our approach to these matters,16 and the Supreme Court has, as yet, had little opportunity to clarify what our role in this area can or should be. This decisional route will fully preserve, through the statutorily prescribed procedures, the rights of the parties to seek judicial review at an appropriate time. As to procedure, while we believe, for the reasons above indicated, that the postelection objection route will safeguard our procedures against undue delay and still provide the parties with a fair opportunity to litigate such issues, only some period of experience will demonstrate whether the route we have deter- mined to utilize will prove practicable for us and equitable to all concerned, Hence, we have opted for the decisional route at this time, being of the view that it is particularly important in this new area to heed the warning of the Supreme Court that there are times where engaging in rulemaking could "make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise. . . ." 17 In sum, then, we hold that we will not consider the present objections to Petitioner's capacity to fairly represent employees at this time. We will consider them after the election has been held, and then only if the Petitioner wins the election, but before certification issues, if properly substantiated objec- tions to the issuance of a certification are filed based on the grounds we have discussed herein.18 We hold that the Employer in this case may raise the issue of 16 N.L. R.B. v. Mansion House Center Management Corp., 473 F.2d 471 (C.A. 8, 1973); The Emporium and Western Addition Community Organiza- tion, 192 NLRB 173 (Member Jenkins dissenting), reversed 485 F.2d 917 (C.A.D C, 1973). We are currently seeking certiorari in the Emporium case. 17 Securities & Exchange Commission v. Chenery Corporation, 332 U.S 194. 18 It is for this reason that we hereby deny the Employer's motion to dismiss and to reopen the record to receive further evidence. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such disqualification of the Petitioner by an objec- tion to the issuance of the certificate filed with the Regional Director within 5 days of the issuance of the tally of ballots for any election which may be conducted herein, which will be considered only if the Petitioner ultimately receives a majority of the valid votes cast. Said objection, if timely filed and properly served on all parties, shall be processed in the same manner as -any other objection filed in accordance with the provisions of Section 102.69 of the Board's Rules and Regulations, Series 8, as amended. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit consisting of all drivers, warehousemen, mechanics, and helpers employed at the Employer's Miami, Florida, facility.19 At the Employer's Miami facility, there are approximately 24 drivers, 22 to 26 full-time helpers, 10 to 15 part-time warehousemen and helpers, 1 storage clerk, and 1 claims clerk. The Employer contends that the unit sought by the Petitioner is inappropriate on several grounds. The Employer contends that one of two other units would be appropriate: one unit would be the entire Southeastern Region of the Employer, which con- tains seven district offices; 20 the other unit would be that consisting of three district offices: Miami, Boca Raton, and Fort Lauderdale, Florida. The Employer further contends that the unit sought by the Petitioner is inappropriate because all of the drivers the Petitioner would include are supervisors within the meaning of Section 2(11) of the Act. Finally, the Employer contends that the unit sought by the Petitioner is too narrow in scope since it fails to include a storage clerk, a claims clerk, and regular part-time employees employed by the Employer at its Miami, Florida, facility. With respect to the appropriate unit, the Employer grounds its arguments in support of a unit encom- passing three district offices and an alternate unit encompassing all of the district offices of the Southeastern Region on the factors of common supervision, contact among employees of the various offices, equipment exchanges, a centralized vehicle repair facility, and common lines of communication. However, the record shows that the district offices 19 The facility involved houses the Employer's Southeastern Region headquarters, its Miami district office, and one warehouse. 20 Miami, Boca Raton, Fort Lauderdale, Tampa, Clearwater, and Jacksonville, Florida, and Atlanta, Georgia. 21 Groendyke Transport, Inc., 171 NLRB 997; Wayland Distributing Company, Inc., 204 NLRB No. 72. 22 The Employer would exclude one regular driver on the grounds that he is a "driver trainer," i .e., a driver who trains prospective drivers, rates are effectively antonomous with regard to scheduling the work of their employees, hiring, firing, and supervising the daily performance of their employees, and determining layoffs. Moreover, there is virtually no temporary interchange between employees from the Miami district office and the other district offices within the Employer's Southeastern Region. Further- more, the district offices are not geographically contiguous. In addition, there is no prior history of bargaining on a multidistrict office or regional basis. Finally, no labor organization seeks to represent these employees on any other basis. Under these circumstances, we find that the single-district office unit requested by the Petitioner is appropriate.21 With respect to the supervisory status of the drivers, the Petitioner states that they are not supervisors, and should be included in the unit. The Employer, on the other hand, states that the truckdrivers are supervisors, and should therefore be excluded from the unit sought.22 The record shows that there are approximately 24 truckdrivers. Of these 24 truckdrivers, approximately 4 drivers regu- larly serve as "radial drivers," i.e., drivers who travel further than 50 miles from the Employer's Miami facility. With regard to those drivers who function within a 50-mile radius of the Employer's Miami facility, the record shows that they have no authority to hire or fire helpers or effectively recommend such action; the dispatcher determines the driver's route and the type of truck the driver will use; the driver has no power to transfer a helper from one driver to another, or select a particular helper; each driver punches the same timeclock as that used by the helpers, and they both wear the same uniforms; and the drivers work with the helpers in loading and unloading the Employer's trucks. The record, viewed as a whole, establishes that the work performed by the regular drivers is routine, and does not involve the exercise of any supervisory authority. However, the "radial" drivers do exercise certain indicia of supervisory authority as set forth in Section 2(11) of the Act. The record shows that the "radial" drivers, unlike the regular drivers, have the authority to hire temporary help at their destination, set rates of pay for such help, and terminate or lay off such help at their discretion. Accordingly, we find that the regular drivers are employees who share a community of interest with the remaining employees in the unit sought, and should therefore be included in that unit. their performance as drivers , and effectively determines if they will serve as drivers . The Employer states that this individual also rates its drivers at a given location on a quarterly basis. We find no record support for the contention that this individual is a supervisor within the meaning of Sec. 2(11) of the Act . The witness who served in this capacity at the Miami facility credibly stated that he merely showed other drivers how to fill out various forms. BEKINS MOVING & STORAGE CO 143 However, we find that the four "radial" drivers are supervisors within the meaning of the Act and therefore we shall exclude them from the unit. The Petitioner took no position with regard to the storage clerk, the claims clerk, or the part-time warehousemen and helpers. The Employer states that the storage clerk should be included in the unit because he has frequent contact with the warehouse- men, his office is located next to the warehouse, he has occasion to move inventoried articles about in the warehouse, and he is paid hourly as are the warehousemen. The Employer also states that the claims clerk, who is in charge of processing customer claims for damage to goods moved by the Employer, should be included in the unit since this clerk has frequent contact with the drivers and warehouse employees in the course of processing customer claims. Finally, the Employer states that the regular part-time employees who work from 10 to approxi- mately 35 hours each week on a regular basis should be included in the unit. The record shows that the storage clerk is situated in an office adjacent to the warehouse, maintains records as to the nature and location of items stored in the warehouse, has frequent contact with the warehousemen, and occasionally moves items situat- ed in the warehouse. The record also shows that the claims clerk spends the bulk of her time in processing customer claims for damages to goods and maintain- ing an inventory of customer overages, and that she has infrequent contact with the warehousemen. In view of the foregoing facts, we find that the storage clerk should be included in, and the claims clerk excluded from, the unit sought. As for the regular part-time helpers and warehousemen, we shall include them in the unit since they perform the same work under the same conditions as their full-time counterparts. Accordingly, we find that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers, warehousemen, mechanics, storage clerks, and regular part-time helpers and ware- housemen employed by the Employer at its Miami, Florida, facility, excluding the claims clerks, all office clerical employees, managerial employees, confidential employees, radial drivers, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote 23 omitted from publication.] MEMBER KENNEDY, concurring: I agree with Chairman Miller and Member Jenkins to the extent that we are constitutionally foreclosed from issuing a certification to a labor organization which discriminates on the basis of race ,24 alienage,25 or national origin .26 Since I am not in complete agreement with them as to the constitutional princi- ples involved, I have elected to set forth my views in a separate opinion. Whenever issues pertaining to discriminatory practices of labor organizations are raised before this Board, we must cope with two Federal policies which are, to some extent, inconsistent . On the one hand, we were created by Congress for the primary purpose of implementing the policies of the National Labor Relations Act. One of those stated policies is to protect for workers their "full freedom of association, self-organization, and designation of representatives of their own choosing...." 27 In implementing this policy, we have established election procedures designed to expeditiously certify as exclusive bar- gaining representatives those labor organizations selected by the employees to represent them. On the other hand, we are also an instrumentality of the Federal Government, and as such are precluded by the Constitution from directly or indirectly sanctioning the private exercise of discrim- ination. Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954). In my view, the issuance of a certification to a labor organization which excludes persons from membership on the basis of race , alienage, or national origin would constitute such an impermissi- ble sanction . It follows, therefore , that if this Board is going to continue to perform its statutory responsi- bilities under the Act efficiently, we must devise a method of satisfying our constitutional responsibili- ties in a manner which will least interfere with the procedures by which the employees select a bargain- ing representative. In determining the proper role which the Board should assume in this area , it is important to recognize that through Title VII of the Civil Rights Act of 1964, as amended in 1972, Congress has entrusted considerable authority over discrimination in employment to the Equal Employment Opportuni- ty Commission. The more recent expansion of EEOC jurisdiction to include pattern and practice suits further evidences a congressional desire to channel most employment discrimination suits to the EEOC. Such an effort, it seems to me, is desirable from both a legal and administrative standpoint . It would promote uniformity in the development of the law in terms of policies, procedures, and goals, while at the same time promoting the most economic use of 24 See Loving v. Virginia, 388 U S 1, 11 (1967), McLaughlin v Florida, Richardson, 403 US 365, 372 (1971) 379 U.S 184, 191-192 (1964) 26 Oyama v. California, 332 U.S. 633,644-646 (1948) 25 See Graham Commissioner, Department of Public Welfare of Arizona v 27 National Labor Relations Act, § 1, 29 U.S.C. § 151. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD governmental resources. Equally important, it would avoid subjecting charged parties to a multiplicity of simultaneous or successive lawsuits. In view of these considerations , when allegations of discrimination by a labor organization are raised in a representation proceeding before this Board, I would restrict the scope of the Board's inquiry to those matters which we are constitutionally required to entertain. For should we ignore the existence of such agencies as the EEOC and fully embrace all aspects of employ- ment discrimination, it will be impossible for us to devote adequate attention to those Federal policies which we were created to implement. Assuming, as I do, that the Board is required by the Constitution to examine in a representation proceed- ing allegations that a labor organization discrimi- nates on the basis of race, alienage, or national origin, two questions arise : (1) at what stage of our representation procedures should the allegations be examined, and (2) what should be the scope of our inquiry. With regard to the first question, I agree with Chairman Miller and Member Jenkins that the allegations must be examined prior to certification. I agree further with their conclusion that procedural delays can be minimized by deferring our inquiry until after an election has been held and a labor organization involved has won. I do not agree with the dissent that our inquiry can be delayed until an unfair labor practice proceeding is held under Section 10 of the Act. In Natter Manufacturing Corporation, Case 21-RC-13198, this Board unani- mously authorized the procedure that the majority is adopting in this case. There the Board denied an employer's attempt to litigate a union's alleged discriminatory practices in the preelection hearing. The Board's denial was "without prejudice to the Employer's right to raise the issue of disqualification of the Petitioner by motion filed with the Regional Director within five days of the issuance of the tally of ballots for any election which may be conducted herein." 28 I would adhere to this procedure until such time as we obtain a definitive ruling from the Supreme Court on this important issue. With regard to the second question-the scope of the Board's inquiry-I have already indicated that it should be no broader than is constitutionally required. I believe the Board must entertain allega- 28 The Board has issued similar rulings in a number of other cases including Alden Press, 13-RC-13026; Gero Enterprises d/b/a Jones Miami Beach Express, 12-RC-4302; Southern Service Co., 15-RC-5099; Holiday /nn-Evansville, 25-RC-5544; Automation Supply & Engineering, 28-RC-2627; Reporter Publishing, 20-RC-11441. 29 In view of the Supreme Court's recent decision in Kahn v. Shevin, Attorney General of Florida, et at, No. 73-78, April 24, 1974, where sex was not found to be an inherently suspect classification requiring strict judicial scrutiny, and since the 27th amendment to the Constitution has yet to be adopted , I do not regard precertification allegations based on sex discrimination as a constitutional issue. However, it is my belief that tions that a labor organization excludes persons from membership on the basis of race, alienage, or national origin.29 If upon a prima facie showing of such an exclusion, the labor organization can demonstrate that its recruitment or admission poli- cies are nondiscriminatory then there appears to be no constitutional impediment to its certification. I would not undertake a precertification inquiry with respect to a potential breach of a union's duty of fair representation. Unlike my colleagues, I do not consider the duty of fair representation to be a constitutional obligation. Rather, I view it as an obligation imposed by statute as a corollary to a labor organization's being granted exclusive bargain- ing representative status. The U.S. Supreme Court first discussed the duty of fair representation in Steele v. Louisville & Nashville Railroad Co., et al., 323 U.S. 192 (1944). In that decision, the Court clearly indicated that the origin of the duty of fair representation was statutory rather than constitutional.30 The Court noted that a statutorily certified or recognized labor organization was vested with exclusive authority to represent unit employees. In view of this statutory grant of exclusive authority, the Court determined, there arose a corresponding duty to fairly and impartially represent each employee in the unit. In the words of the Court: The fair interpretation of the statutory language is that the organization chosen to represent a craft is to represent all its members, the majority as well as the minority, and it is to act for and not against those whom it represents. It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf, and that such a grant of power will not be deemed to dispense with all duty toward those for whom it is exercised unless so expressed. [323 U.S. at 202.] As with the Railway Labor Act, labor organiza- tions recognized or certified under Section 9(a) of the National Labor Relations Act become the exclusive representative of unit employees. Accordingly, they thereby incur a statutory obligation to fairly repre- sent those employees. allegations of discrimination based on sex may be raised as a breach of the duty to fairly represent after a certification has issued. 30 Indeed, it was the majority finding that the duty was statutory rather than constitutional in nature which prompted Justice Murphy to write a concurring opinion. Although the statute involved in Steele was the Railway Labor Act, the Court specifically noted the similarity between the relevant provisions there- in, and the corresponding provisions of the National Labor Relations Act. 323 U.S 200. In The Wallace Corporation, v. N.L.R.B., 323 U.S. 248,1255-256 (1944), decided on the same day as Steele, the Steele analysis regarding the duty of fair representation was applied to the National Labor Relations Act. BEKINS MOVING & STORAGE CO. 145 It is also significant that the Supreme Court has continually described the duty to fairly represent employees as the "statutory duty of fair representa- tion."31 In Ford Motor Company v. Huffman, 345 U.S. 330, 337 (1953), the Court stated: 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 members of an appropriate unit requires them to make an honest effort to serve the interests of all of those members, without hostility to any. [Emphasis supplied.] More recently, in Vaca v. Sipes, 386 U.S. 171, 177 (1967), the Court discussed this statutory duty of fair representation: It is now well established that, as the exclusive bargaining representative of the employees in Owens' bargaining unit, the Union had a statutory duty fairly to represent all of those employees, both in its collective bargaining with Swift, see Ford Motor Co. v. Huffman, 345 U.S. 330; Syres v. Oil Workers International Union, 350 U.S. 892, and in its enforcement of the resulting collective bargain- ing agreement, see Humphrey v. Moore, 375 U.S. 335. The statutory duty of fair representation was developed over 20-years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N. R. Co., 323 U.S. 192; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, and was soon extended to unions certified under the N.L.R.A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U.S., at 342. [Emphasis supplied.] In my view, allegations regarding a union's failure to honor its duty of fair representation must, of 31 See also, Cox, The Duty of Fair Representation, 2 Vill. L. Rev. 151 (1957), where Archibald Cox stated: Every union representing employees in businesses affecting com- merce is, therefore, subject to a duty of fair representation, imposed by the NLRA, without regard to whether the complaining employees have had the union imposed upon them by force of the statute or have designated it by voluntary membership. [Emphasis supplied] 32 42 U.S.C. 2000e, et seq. necessity, relate to actions following certification. Until a union has become the employees' exclusive bargaining representative, it is not subject to a duty to represent them fairly. Accordingly, I would defer any examination of an alleged failure to fairly represent until after a certification has issued. See Hughes Tool Company, 147 NLRB 1573. I believe the Constitution prohibits us from issuing a certification to a labor organization which has adopted a policy of excluding employees from membership on the basis of race, alienage, or national origin. Accordingly, I would limit the scope of our precertification inquiry to determining the presence or absence of such a policy. I do not minimize the difficulties inherent in the procedures which the majority is adopting, but I am hopeful that we can discharge our constitutional responsibilities without unduly disrupting our repre- sentation procedures. MEMBERS FANNING and PENELLO, dissenting: The majority holds that the Employer may, at the objections stage of this proceeding, file objections to the certification of the Petitioner on the grounds that the Petitioner discriminates in its membership poli- cies and therefore, because it is likely to discriminate in the representation of employees in the bargaining unit on the basis of race, sex, or national origin, it must be found incapable of, and disqualified from, representing the employees. Such objections, the majority holds, must be investigated and resolved if the Petitioner receives a majority of the valid ballots cast in a free and fair election and would, but for the objection entered by the Employer, receive certifica- tion as the exclusive representative of the employees involved herein. It is apparent that the majority does so because, in its view, constitutional requirements, i.e., the due process clause of the fifth amendment, certain policies of the Act which they do not spell out, and the Board's obligation to administer the Act in harmony with other Federal statutory policies, particularly the Civil Rights Act of 1964, as amend- ed,32 preclude the Board from certifying a union which the Board has reason to believe will not fairly represent members of minority groups. We dissent 33 We do so, even though we neither approve nor condone discriminatory practices on the part of unions, because we believe that withholding 33 Although we do not make any finding as to whether the Employer will be able to prove that Petitioner practices invidious discrimination in its representation and membership policies, we note that the Employer apparently contends that Petitioner discriminates in its membership policies on the basis of sex and national origin An affidavit of Petitioner's president discloses, however, that 12-1/2 percent of its members are Spanish- surnamed individuals , 12-1/2 percent are women, and 25 percent are black and its bylaws and constitution contain no provisions either permitting or requiring such discrimination. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certification in the circumstances indicated is neither required by the Constitution nor permitted by the provisions of the Act.34 Moreover, we believe that such action undercuts rather than strengthens the Federal Government's administration of the Civil Rights Act of 1964, as amended, to eliminate the very discriminatory practices purportedly involved herein. Turning first to the constitutional considerations involved, it is important to note that certification of a union as an exclusive representative not only gives the union the statutory right to bargain for the employees, it also imposes the obligation upon the union fairly to represent all employees in the bargaining unit, those opposed to the union as well as those supporting it, members of minority groups within the unit as well as those comprising the majority, and to do so without invidious discrimina- tion. This obligation is statutory and may be constitutional as well.35 The issuance of a certifica- tion of representative will impose upon Petitioner the responsibility to act with respect to all members in the bargaining unit in a manner which does not violate their constitutional right not to "be deprived of life, liberty, or property, without due process of law,"36 a responsibility which may not attach to it in its private capacity as a voluntary association of individuals. Certification of the Petitioner as their exclusive representative will give members of the bargaining unit rights enforceable not only under the Act, but under the Civil Rights Act as well, and in lawsuits arising under the laws of the United States.37 The rights which may be enforced by minority members of the bargaining unit against their exclu- sive representative include, of course, the right to be represented fairly and without hostility or discrimi- nation. Among those rights also is the right to participate in the affairs of the exclusive representa- tive, including the right to be admitted to member- ship.38 These rights, it should hardly need be said, attach to employees represented by any exclusive representative, whether such status was obtained 34 We note that this issue, perhaps one of the most important ever to be decided by the Board, has come to the Board on a motion of the Employer only cursorily briefed by it, and as to which the Board has neither asked for nor received statements of positions of the parties or other interested persons and organizations. 35 Steele v. Louisville & Nashville Railroad Co., et al., 323 U.S. 92 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210 (1944); The Wallace Corporation v. N.L.R.B., 323 U.S. 248 (1944). 36 Betts v. Easley, 169 P.2d 831 (Kans . S.Ct., 1946). See also James v. Marinship Corporation, 155 P.2d 329, 339 (Calif. S.Ct., 1944). "It is true ... that unions which have been certified under § 9 of the NLRA as collective bargaining agents must exercise their statutory power, as federal instrumentalities, subject to the First and Fifth Amendments and other relevant parts of the United States Constitution." Linscott v. Miller Falls Company, 316 F.Supp. 1369, 1370 (D.C.Mass. (1970)), affd. 440 F.2d 14(C.A. 1, 1971). 31 See cases cited in fns . 35 and 36. See also Ford Motor Company v. Huffman, 345 U.S. 330 (1953); Syres v. Oil Workers International Union, through voluntary recognition or by means of a Board certification. In these circumstances, we can find no merit to the Employer's constitutional argument in this case, an argument apparently accepted by the majority, that certification of a union which, to put the hard case, denies member- ship to members of minority groups, because of the color of their skin, their sex, or national origin, places the Board in the position of aiding and abetting the union's discriminatory policies. The conclusion seems to us to be quite the other way around. By certifying Petitioner if it wins a valid Board election, the Board, other Federal agencies, and the minority groups within the bargaining unit are placed in a position where they can act constructively to elimi- nate the discriminatory policies which the majority's contemplated action would leave wholly untouched, except in the unlikely event the Employer voluntarily recognizes the Union whose certification it is so vigorously opposing. We are at a loss to understand our colleagues' denigration of the substantiality of these rights and the opportunities afforded employees to invoke governmental assistance in eliminating evils flowing from racial and other invidious discriminatory practices on the part of unions. This Board has recently found that an exclusive representative violated Section 8(b)(1)(A) by segregating its mem- bers into separate locals, one for male members and one for female members, and by restricting the processing of grievances to the local in which the employee was eligible for membership.39 We held that segregation of membership on the basis of sex effectively denied employees a voice in the resolution of matters affecting working conditions. This denial of the right of full participation in the affairs of the representative was found to restrain and coerce employees in the exercise of Section 7 rights. Obviously, though the case involved segregated locals affording some form of membership participa- tion, it applies to total exclusion from membership on such grounds. Local No. 23, 350 U.S. 892 (1955); Humphrey v. Moore, 375 U.S. 335 (1964); Vaca v. Sipes, 386 U.S. 171 (1967). 38 Betts v . Easley, supra; see also James v. Marinship Corporation, supra. See also the Civil Rights Act of 1964, as amended . It is not at all inconceivable that members of a minority group might vote for representa- tion by a union which discriminates in its membership policies with respect to members of that group as a first and necessary step in reforming the practices of that union so as to obtain representation by a strong and effective union. In any event, we have no petition by members of the minority groups, whose constitutional rights are allegedly endangered, seeking to have the Petitioner disqualified ; we have here, as we will have in all the cases our colleagues invite , only the request of an employer seeking to invoke whatever means are handy to avoid having to deal with its employees collectively rather than individually. 39 Local No. 106, Glass Bottle Blowers Association, AFL-CIO (Owens- Illinois, Inc.), 210 NLRB No. 131 (Member Penello concurring specially and Member Kennedy dissenting in part). BEKINS MOVING & STORAGE CO. 147 One may, we suppose, have differing views about the reasonableness of that construction of the statute, and, indeed, two members of the Board disagreed with the finding that the maintenance of segregated locals on the basis of sex by itself violated the Act. However, if that decision is as sound in law as in policy, it demonstrates that the Act affords suitable machinery, economically and administratively avail- able to employees who are victims of the discrimina- tory practices which all of us abhor, to eliminate discriminatory membership policies of unions claim- ing the status of exclusive representative under the Act. For a charge filed against such representative, whether newly certified or not, will bring the whole machinery of this Agency to bear on establishing the existence of the invidious discrimination and in devising effective affirmative remedial action to eliminate the offending practices. It will do so, moreover, at the behest of the victims of the discrimination whose rights have been infringed upon and who are seeking to exercise those rights, not upon the behest of some employer seeking to delay or avoid the day he must deal with his employees collectively rather than individually. In a very real sense, therefore, the certification of a union as an exclusive representative operates to create the necessary condition for permitting the sanction of law and government to run against the offending practices. The fact that this process is normally invoked by an individual filing charges with the Board is no reason to minimize its effectiveness from an adminis- trative or constitutional standpoint. Both Congress and courts have recognized the paramount impor- tance of individual action in this area of the law by authorizing and encouraging individuals to initiate and maintain actions involving discriminatory union membership and representational policies, both in Title VII cases and in fair representation cases.40 In short, we reject the argument that Board action 40 As the Supreme Court noted in Alexander v Gardner-Denver Co, 415 U.S 36, (1974) "In addition to reposing ultimate authority in federal courts, Congress gave private individuals a significant role in the enforcement process of Title VII Individual grievants usually initiate the Commission's investigatory and conciliatory procedures And although the 1972 amendment to Title VII empowers the Commission to bring its own actions, the private right of action remains an essential means of obtaining judicial enforcement of Title VII 42 U S C § 2000e-5(f)(1) In such cases, the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory practices " In Vaca v Sipes, supra, the Supreme Court held that the fact that a union's breach of the duty of fair representation may be an unfair labor practice under Sec 8(b) of the Act does not preclude employees from maintaining court actions and courts from devising appropriate remedies to eliminate the discrimina- tory practices The right of individual action and the existence of a multiplicity of forums available to the individual for vindication of his constitutional rights not only gives greater opportunities for actions that can be tailored to elimination of the offending practices without sacrificing the benefits accruing to the individual and the public from the establishment and preservation of the collective -bargaining relationship, it demonstrates beyond reasonable doubt that the certification of a labor organization as an which will operate to clothe Petitioner with a statutory (and possibly constitutional) responsibility, vis-a-vis the employees it represents, somehow and in someway contravenes the due process clause of the fifth amendment. Turning next to a consideration of the policies of the Act, we believe the withholding of a certification from a union which has won a fairly conducted valid election is beyond the power of the Board. It is now well established that, in establishing the representa- tion case procedures, Congress intentionally denied the right of court review of such proceedings, except where an unfair labor practice order is dependent upon facts certified as a result of a proceeding conducted under Section 9(c).41 The evident purpose behind this decision was to provide for the speedy resolution of questions concerning representation and the selection of bargaining representatives. To that end Congress in Section 9(c)(1) directed that "[w]henever a petition has been filed, in accordance with such regulations as may be prescribed by the Board . . . the Board shall investigate such petition and if it has reasonable cause to believe that a question concerning representation affecting com- merce exists shall provide for an appropriate hear- ing. . . . If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof." (Emphasis supplied.) This language is language of requirement. Absent unfair- ness in the election itself, the section commands the Board to issue a certification of representative to the winning labor organization.42 Our colleagues appar- ently are willing to follow the statutory command insofar as directing and conducting the election is concerned, but they balk at honoring the mandate of the employees and certifying the Petitioner should it win but then be found to be "disqualified."43 But the language "shall certify" is as mandatory as "shall investigate" and "shall direct an election," exclusive representative of employees rather than sanctioning the offending practices imposes upon the labor organization the duty of refraining from engaging in such practices. 41 See Secs 9(d) and 10(e) and (f) A F of L v. N L R B, 308 U S 401 (1940) 42 Miami Newspaper Printing Pressmen 's Union Local 46 v McCulloch, 322 F.2d 993 (1963). 43 Our colleagues find that the Petitioner is a labor organization within the meaning of the Act notwithstanding it may be deemed to be "disqualified" from receiving certification, as indeed they must. If it were found not to be a "labor organization" the provisions of Sec 8(b) could not be applied to it. Nor do our colleagues rule that the Petitioner's possible disqualification, if proven, justifies a refusal to place it on the ballot, although that would seem to be a normal and logical means of handling the issue. Of course, Sec 9(c)(2) requires some disqualification flowing from an order issued in accordance with the provisions of Sec 10(c). Our colleagues also find that Petitioner's petition presents a question concerning represent- ation without regard to whether Petitioner engages in invidious discrimina- tion so as to "disqualify" it from receiving certification , for they direct an election. They can hardly deny the validity of the election if Petitioner wins but does not receive certification, for else the Petitioner could picket the (Continued) 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, if the Petitioner wins this election, the Board is required to certify it as the exclusive representative of the employees in the appropriate unit. Nor is there any reason why this should not be so. To do otherwise is to deny employees the right guaranteed them by Section 7 of the Act to bargain collectively through representatives of their own choosing. Any defects in the certification which may flow from the Petitioner's allegedly discriminatory membership policies are subject to review in proceedings which may arise under Section 10 of the Act.44 Delaying review of the certification until such time is wholly consonant with the statutory scheme and with due process.45 In addition, should the Petitioner be recognized by the Employer pursuant to the certifica- tion, and should it then fail fairly to represent the employees, the certification would itself be subject to revocation upon proof of such dereliction rather than being withheld upon a mere presumption that the Petitioner will fail to discharge its obligations.46 Nor are employers required to submit to a certified union's demands that they institute or agree to discriminatory employment conditions. Indeed, just as employers can be compelled to bargain about the elimination of existing discriminatory customs and practices,47 we take it they would not violate Section 8(a)(5) of the Act in refusing to bargain over union demands that they continue or institute discriminato- ry practices.48 Of course, it must be recognized that employers may not be quick to perceive advantage to themselves in resisting such demands, but the point is that, insofar as a union's discriminatory membership and representational policies may affect interests and rights of employers, they have the means to resist their imposition upon them and to bring about their elimination. Moreover, since employees can also file charges with the Board, 49 as well as invoke other laws to eliminate the offending practices and policies, there is simply no justification for devising a procedure by which employers opposed to dealing with their employees collectively can delay and forestall the establishment of the collective-bargain- ing relationship. In short, consistent with the statuto- ry scheme,50 we would deny the Employer 's motions in their entirety and leave such questions as they may raise, with respect to the Petitioner's willingness or capacity fairly to represent all employees in the bargaining unit, to be resolved in other proceedings under the Act. We recognize, of course, that "... The Board has not been commissioned to effectuate the policies of the . . . Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives.51 Obviously, if Board certification of a union which engages in discrimination on the basis of race, sex, or national origin in its representation of bargaining unit employees were to frustrate the administration of the Civil Rights Act of 1964, as Employer without violating Sec 8(bx7XB) of the Act If, in such circumstances, an 8(bx7)(C) charge were filed, the Petitioner could force an expedited election by filing another petition, and our colleagues would be back where they started. Needless to say, such an endless round of election, refusal to certify, picketing, election, etc., does not comport with the provisions of either Sec. 9(c) or Sec. 8 (b)(7). But if the election is a valid election, if the Petitioner wins but is denied certification , the employees whom our colleagues would protect from the evils of representation by a union practicing discrimination (which, in any event, they have selected, possibly even with the hope and expectation of reforming its practices) will be denied the right to have another election for I year. It can be seen that the majority cannot accomplish their purpose except at the expense of distorting one or another of the provisions of Sec. 9 of the Act. 44 Unions cannot routinely seek review of decisions withholding certifications. To obtain review they must institute an action in the district courts and must persuade the court that the Board has acted in violation of express statutory commands or prohibitions Leedom v Kyne, 358 U S 184 ( 1958); Miami Newspaper Union Local 46 v. McCulloch, supra. 45 A.F. of L v. N.LR B., supra. 49 The majority treats the withholding of a certification as similar to the revocation of a certification The two actions are completely different. The power to revoke a certification stems from the Board 's power to police certifications issued in consequence of statutory commands The existence of the power serves to encourage the certified union to discharge its statutory responsibilities, and thus serves to preserve and foster the institution of collective bargaining. The certification can be revoked only after proof that the certified union has in fact failed to discharge its obligation fairly to represent all employees. Withholding of a certification, on the other hand, can never rest on more than a presumption that the union will not fairly represent the employees whom it seeks to represent, a presumption based, moreover, on circumstances existing as of a time when the union could not have violated a duty of fair representation as to those employees because it had not yet been selected as their representative. Contrast this with the treatment given to alleged employer discrimination ion the basis of sex in Jubilee Manufacturing Company, 202 NLRB 272 (Member Fanning concurring specially and Member Jenkins dissenting) There the complaint was dismissed by the majority because there was no showing of any direct relationship between the alleged discrimination and the Board's "traditional and primary functions of fostering collective bargaining, protecting employees' right to act concertedly, and conducting elections in which the employees have an opportunity to cast their ballots for or against a union in an atmosphere conducive to the sober and informed exercise of the franchise." In concurring, Member Fanning stated he would require a showing of actual discrimination among the employees in the unit involved This is, we believe, the proper way to handle this issue. 47 Farmers' Cooperative Compress, 169 NLRB 290, enfd. 416 F.2d 1126 (C.A.D.C., 1969) 48 They could also file 8(b)(3) charges against the union. Of course, such action, though it would bring about the elimination of the union 's actions seeking to involve the employers in the offending practices, would preserve the collective-bargaining relationship. 49 Owens-Illinois, supra 50 Assuming, arguendo, that there is merit in our colleagues' position that the Board cannot issue a certification to a union that discriminates in its membership and representational policies, we submit that the question of the union's qualification to act as a representative should be litigated before the direction of election . Obviously, the union's qualification to receive certification is a matter of importance to the employees in choosing between competing labor organizations in a Board election and the Board's action in holding the election will necessarily be perceived as a ruling that the Union is qualified. Moreover, if the act of certification places the sanction of government upon the offending discriminatory practices, so does making governmental machinery available to the offending union. Indeed, a union which wins such an election, but is denied certification, may nevertheless be able because of the solidarity and strength thus demonstrated to force the employer to recognize it without a certification These considerations and those set forth in In . 43 of this opinion make it apparent that the issue cannot be confined simply to those cases in which the offending union wins the election. Si Southern Steamship Company v. N.LR.B., 316 US 31, 47 (1942) BEKINS MOVING & STORAGE CO. 149 amended, there might, even in the absence of constitutional requirements, be room for such an accomodation of the policies of the two statutes as our colleagues attempt herein. But that is not the case. That act makes it an "unlawful employment practice" for a labor organization to exclude or expel from its membership or to otherwise discriminate against any individual, or to segregate or classify its membership on the basis of race, color, sex, religion, or national origin, or to cause or attempt to cause an employer to discriminate against an employee.52 It defines a labor organization as one "engaged in an industry affecting commerce,"53 and provides that a labor organization certified by the Board as an exclusive bargaining representative, without more, is such a labor organization.54 Obviously, certification by the Board of a union which engages in practices prohibited by the Civil Rights Act does not prevent or in any way frustrate the effectuation of the policies of that act. Indeed, inasmuch as Board certification may, in some cases, be the sole criterion which subjects the union to the provisions of that act, withholding of certification may actually frustrate administration of the Civil Rights Act. In any event, it is plain that, in enacting the Civil Rights Act, Congress sought to eliminate not only those unlawful employment practices committed by employers and unions acting individually, but also those resulting from collective bargaining by employers and unions. Congress did not, in reaching out against such practices, seek to eliminate the institution of collec- tive bargaining. Rather it made certain employment practices unlawful, thus preserving and strengthening the institution. Our colleagues would throw out the baby with the bath. Just as the Board has been admonished against single-minded administration of the Act which ignores other and equally important congressional objectives, it has been admonished against enforcing policies given to others to adminis- ter in the guise of enforcing the provisions of the Act.55 52 42 U.S.C 2000e (2) 55 Local 1976, United Brotherhood of Carpenters and Joiners of America, 53 42 U S.C.2000e(d) AFL [Sand Door & Plywood Co) v N L R.B, 357 U S 93, 108-111 (1958) 54 42 U S C 2000e (e)(i)