Handy Andy, Inc.

HANDY ANDY 447 Handy Andy, Inc. and Mason M. New, Petitioner, and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, General Drivers & Helpers Local Union No. 657. Case 23-RD-324 February 25, 1977 DECISION AND CERTIFICATION OF REPRESENTATIVE Pursuant to a petition for decertification filed on May 14, 1974, and a Stipulation for Certification Upon Consent Election approved May 28, 1974, by the Regional Director for Region 23 of the National Labor Relations Board, an election by secret ballot was conducted on June 14, 1974, under the direction and supervision of the said Regional Director, among the employees in the appropriate bargaining unit set forth in the stipulation. At the conclusion of the counting of the ballots, a tally of ballots was prepared and served on the parties which showed that, of approximately 198 eligible voters, 175 cast ballots, of which 108 were cast for, and 66 against, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, General Drivers & Helpers Local Union No. 657, herein called the Union. There was one challenged ballot, an insuffi- cient number to affect the results. Thereafter, the Employer filed a timely objection to the issuance of certification of the Union as bargaining representa- tive. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on August 19, 1974, issued and duly served on the parties his Report and Recommendation on Objection, in which he recommended that the Em- ployer's objection be overruled and that the Union be certified as the exclusive bargaining representative of the employees in the unit involved herein. Thereafter, the Employer filed timely exceptions to the Regional Director's report. On December 29, 1975, the Board, having deter- mined that this and a number of other cases involving alleged race and sex discrimination on the part of labor organizations presented issues of importance in the administration of the National Labor Relations Act, as amended, scheduled oral argument in this and other cases 1 limited to all issues arising from N.L.R.B. v. Mansion House Center Management Corporation, 473 F.2d 471 (C.A. 8, 1973), and Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974), Members Fanning and Penello dissenting. Oral arguments were heard on February 2, 1976. Amici curiae arguments were also heard at that time.2 Upon the entire record in this case, including the exceptions and oral arguments, the General Coun- sel's statements of position, and the amici briefs, the Board finds: 1. The Employer is engaged in commerce within the meaning of Section 2(2) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agree, and 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 warehouse employees, dock workers, truckdriv- ers, sanitation drivers and helpers, shipping and receiving clerks, warehouse clerical employees, garage mechanics, fork lift and pallet jack mainte- nance employees and custodial employees em- ployed at the Employer's grocery warehouse, produce warehouse, Harry Tappan Institutional Warehouse and meat products warehouse located in Bexar County, Texas, excluding all other employees including all maintenance and con- struction shop employees, poultry processing plant employees, bakery employees, office clerical employees, guards, watchmen and supervisors as defined in the Act. 5. The Employer's sole objection to the issuance of a certification to the Union is that [t]he Union . . . practices invidious discrimina- tion by engaging in practices such as excluding persons from membership on the basis of race, alienage or national origin and/or is shown to have a propensity to fail to represent employees fairly. The Employer contends that the Union's alleged discriminatory practices preclude it from being certified as an exclusive bargaining representative, citing Bekins Moving & Storage Co. of Florida, Inc., supra. As evidence in support of its objection, the Employer relies primarily upon several decisions by I Trumbull Asphalt Company, Inc., Case 25-RC-5719; Bell & Howell 2 The American Federation of Labor and Congress of Industrial Company, Case 13-CA-13680; and Murcel Manufacturing Corporation, Cases Organizations and the Chamber of Commerce of the United States 10-CA-10122, 10-CA-10152, and IO-RC-9502. submitted briefs and presented oral argument as amen curiae 228 NLRB No. 59 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the United States Court of Appeals for the Fifth Circuit .3 In these cases, the court held, inter alia, that certain seniority provisions of the National Master Freight Agreement, to which the Union is a party together with various employers (but not the Employ- er herein), were unlawful because they perpetuated the effects of the employers' past discrimination. Consequently, the court found that the Union, by being party to such an agreement, had violated Title VII of the Civil Rights Act of 1964.4 The Employer's reliance on Bekins is based on the majority's holding in that case that the Board is constitutionally required to consider issues raised by an objection grounded on alleged invidious discrimi- nation prior to issuance of a Board certification of representative.5 As the majority noted in Bekins, however, the question of whether a labor organiza- tion's invidious discrimination constitutes objection- able conduct warranting withholding certification was a novel issue and one on which the Supreme Court has not ruled. We now conclude that the policies of the Act are better effectuated by consider- ing allegations that a labor organization practices invidious discrimination in appropriate unfair labor practice rather than representation proceedings. Accordingly, for the reasons set forth hereafter, the Bekins decision is overruled .6 In our view neither the fifth amendment to the Constitution nor the National Labor Relations Act, as amended, requires the Board to resolve questions of alleged invidious discrimination by a labor organi- zation before it may lawfully certify the union as the exclusive bargaining representative of employees in an appropriate unit. Indeed, it appears to us that the contrary is true; namely, that the Board is not authorized to withhold certification of a labor organi- zation duly selected by a majority of the unit employees. In so holding, we are fully cognizant of our continuing obligation under the statute to police the conduct of certified unions as it relates to their 3 Rodriguez, et al. v. East Texas Motor Freight, Southern Conference of Teamsters and Teamsters Local 657, 505 F.2d 40 (C.A. 5, 1974); Herrera et al. v. Yellow Freight System, Inc., 505 F.2d 66 (C.A. 5, 1974); Resendis et al. v. Lee Way Motor Freight, Inc, 505 F.2d 69 (C.A. 5, 1974). 4 42 U S C. §2000e to 2000e-17 (Supp. II, 1972), amending 42 U.S.C. §2000e to 2000e-15 (1964). 5 Members Fanning and Penello dissented on grounds that withholding certification as exclusive representative from a union which has won a duly conducted Board election is neither regwired by the Constitution nor permitted by the provisions of the Act and that such action would undercut rather than strengthen the Federal Government's efforts to eliminate the discriminatory practices in issue. Member Kennedy in his concurring opinion agreed that issues involving alleged discrimination on the basis of race , alienage, or national origin are appropriately raised in a precertification inquiry , but expressed his view that, although the Board is constitutionally required to consider such issues prior to certifying a labor organization as an exclusive bargaining representative, there is no similar consitutional requirement concerning alleged discnnuna- tion on the basis of sex. Our discussion herein relates to all allegations of invidious discrimination, assuming, without deciding in this case, that the same considerations necessarily apply. duty of fair representation. Issues relating to whether a union engages in unlawful race, sex, or other invidious forms of discrimination have historically been considered by the Board in the context of unfair labor practice proceedings. Such a proceeding, for the reasons discussed below, continues to be the appro- priate vehicle for resolving such issues and for devising the appropriate remedies for unlawful dis- crimination including revocation of certification. This route recognizes the substantive and procedural differences between representation and unfair labor practice proceedings and affords the charged party the full panoply of due process of law without at the same time denying or delaying the employees' right to the services of their designated bargaining agent.? The majority in Bekins concluded that .recertifica- tion consideration of alleged invidious discrimination by labor organizations is required by the fifth amendment to the Constitution because the Board may not lawfully bestow its certification upon a union which in fact discriminates on the basis of such considerations. The majority stated that, under the principle enunciated by the Supreme Court in Shelley v. Kraemer8 and subsequent cases,9 were the Board, as a Federal agency, to confer the benefits of certification on a labor organization which practices unlawful 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." 10 The foregoing statement misconstrues the "state action" doctrine " as defined in Shelley v. Kraemer, supra, and its progeny. In Shelley, petitioners were blacks seeking to buy property covered by private restrictive covenants which prohibited occupancy of the covered premises by persons "not of the Cauca- sian race." The state courts had enforced the cove- nants and, consequently, had found that petitioner could not obtain valid title. The Supreme Court held 6 Members Fanning and Penello join in overruling the Bekins decision for the same reasons that led them to dissent therefrom and for such additional considerations as are expressed in this decision. 7 The question involved here has been analyzed and discussed at length with clarity and distinction by Mr. Richard Bader in his law review note "The Impact of De Facto Discrimination by Unions on the Availability of NLRB Bargaining Orders," 47 Southern California Law Review 1353 (1974). Our discussion below includes many of his observations. Subsequent to the publication of the article and graduation from law school, Mr. Bader became and is now a member of the staff of the National Labor Relations Board. 8 334 U.S.1(1948). 9 See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); Evans v. Newton, 382 U.S. 296 (1966); Evans v. Abney, 396 U.S. 435 (1970) 10 211 NLRB at 139. 11 Although the equal protection clause does not by its terms apply to the Federal Government, it is well settled that the due process clause of the fifth amendment imposes the same restrictions on Federal action that the fourteen amendment imposes on state action . Boiling v. Sharpe, 347 U S. 497, 499(1954). HANDY ANDY that the agreement, standing alone, did not violate any constitutional right of petitioners, emphasizing that: [T]he principle has become firmly embedded in our constitutional law that the action inhibited by the [equal protection clause ] of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful. [Footnote omitted.]12 The Court concluded, however, that enforcement of the covenants by state courts was state action subject to the equal protection clause. In so concluding, the Court commented: It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint. These are not cases . . . in which the States have merely abstained from action, leaving pri- vate individuals free to impose such discrimina- tions as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. [Emphasis supplied.]13 Thus, the prohibited state action in Shelley v. Kraemer was the affirmative enforcement by the State of a private agreement to discriminate. Similarly, in Peterson et at v. City of Greenville,14 10 blacks were arrested for trespassing after refusing to leave a segregated lunch counter. In reversing their convictions, the Supreme Court noted that a local ordinance requiring segregation at lunch counters had removed the decision to segregate from the sphere of private choice,15 and thus sufficiently involved the State in the counter manager's discrimi- nation to violate the equal protection clause.16 Thus, the case stands for the principle that a governmental body which requires a private party to discriminate runs afoul of the fifth or fourteenth amendments. The governmental action doctrine, as applied to statutes and regulations, was further expanded in 449 Reitman v. Mulkey 17 to extend to mere "authoriza- tion" of private discrimination. In that case, an amendment to the California state constitution, which prohibited any governmental agency within the State from abridging the absolute discretion of any property owner to sell or lease, or to refuse to sell or lease, his property to anyone for any reason, was declared unconstitutional.18 Although purporting to remain neutral on the question of private racial discrimination in housing, the amendment repealed two open housing statutes, and erected a barrier to attaining any such legislation in the future. The Court held that, taken in the context of the conditions and attitudes of its passage, the amendment "was intend- ed to authorize, and does authorize, racial discrimina- tion in the housing market." 19 Thus, the prohibited state action in Reitman was authorization by the State of private discrimination. Finally, in Moose Lodge No. 107 v. Irvis, 20 a state liquor control agency, in granting liquor licenses, promulgated numerous regulations with which licens- ees had to comply. One of these required that "[e ]very club licensee shall adhere to all of the provisions of its Constitution and By-laws." 21 Moose Lodge had a provision in its constitution which denied membership to blacks. The trial court had relied on the pervasive regulation of the club's activity by the liquor control board in ruling that the agency was sufficiently implicated with the discrimi- nating club to violate the fourteenth amendment. But the Court, in analyzing the amount of government involvement necessary to raise constitutional issues, rejected the trial court's reasoning, noting that "[h]owever detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination." 22 (Empha- sis supplied.) The Court held that only one regulation which had the effect of specifically requiring the club to discriminate was sufficiently involved with the private club's racially discriminatory policy to run afoul of the Constitution. None of the other regula- tions governing the operation of Moose Lodge were so entwined with the racial policies as to trigger the equal protection clause, because they did not specifi- cally support the racial discrimination 23 This distinc- tion, which is of obvious importance, was stated by the Court as follows: The Court has never held, of course, that discrimination by an otherwise private entity 12 334 U.S. at 13. 19 387 U.S. at 381. 13 334US.at19 20 407 U S 163 (1972) 14 373 U.S 244 (1963). 15 373 U.S. at 248. . . . 21 407 U S. at 177. 16 373 U.S. at 248 22 407 U.S. at 176-177. 17 387 U.S. 369 (1967). 23 407 U.S. at 177. 18 The Court "acce ted" the ruling of the California Supreme Court, which had so held. 387 U.S. at 381. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever... . [S]uch a holding would utterly emasculate the distinction between private as distinguished from state conduct . . . . Our holdings indicate that where the impetus for the discrimination is private, the state must have "sign(cantly involved itself with invidious discriminations" [citation omitted] in order for the discriminatory action to fall within the ambit of the constitutional prohibi- tion. [Emphasis supplied.]24 Thus, to summarize, while "to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an `impossible task,' "25 it is clear that governmental bodies cannot be "significantly involved" in discrimination. Such involvement has been found in the past where government "required" private parties to discrimi- nate, "enforced" private discrimination, "authorized" private discrimination, or "fostered and encouraged" discrimination. Thus, the issue is whether a sufficient- ly close nexus is established between governmental action and actual discrimination by a private party; mere involvement with a private party who discrimi- nates is not enough. For the reasons set forth below, we conclude that there is no such nexus between the Board's certification and any discrimination under- taken by a union which has received such a certifica- tion. We recognize, of course, that certification of a labor organization confers substantial benefits. The Board does not, however, by certifying a labor organization, place its imprimatur on all the organization's activity, lawful or otherwise. On the contrary, a certification is neither more nor less than an acknowledgment that a majority of the employees in an appropriate bargain- ing unit have selected the union as their exclusive bargaining representative.26 The choice of represen- tative is made by the employees, and may not be exercised by this Board: For, it must be remembered that, initially, the Board merely provides the machinery whereby the desires of the employees may be ascertained, and the employees may select a "good" labor organi- zation, a "bad" labor organization, or no labor 24 407 U S.at173 25 Burton v. Wilmington Parking Authority, supra, 365 U.S. at 722. 26 Of course, certification is based on recognition that the representative qualifies as a labor organization within the meaning of Sec. 2(5) of the Act. In this regard, we agree with the dissenters in Bekins that the majority in that case reached the anomalous result that a union may be a "labor organiza- tion" entitled to a place on the ballot and then , after the election, be "disqualified" from receiving certification on grounds that it practices invidious discrimination . This anomaly may have unfortunate consequences organization, it being presupposed that employees will intelligently exercise their right to select their bargaining representative.27 Clearly, certification does not constitute enforce- ment or even approval of a labor organization's activities, and should not be construed as "state action" restricted by the fifth amendment. Indeed, a union's status as the bargaining represen- tative gives it no right or authority to establish hiring restrictions based on membership restrictions wheth- er or not such membership restrictions are legitimate for other purposes. For, under the Act, it is an unfair labor practice for a labor organization, whether or not it is certified, to cause or attempt to cause employers to hire on the basis of membership or nonmembership in a union. The Act further provides appropriate means to remedy such an unfair labor practice. Furthermore, a bargaining representative's right to enter into union-security agreements with employers conditioning continued employment on union membership or payment of agency shop fees is dependent on the availability of membership in the bargaining representative to any employees who choose to join. Similarly, if access to a union hiring hall is limited to union members, the exclusive hiring hall agreement violates the Act. Further, any mem- bership policy of a union which would tend to limit job opportunities for minorities is barred by Title VII of the Civil Rights Act of 1964, as amended. Finally, the duty of fair representation 28 prevents unions from using their bargaining representative powers in a discriminatory manner. Thus, while use of Board processes and the Board's certification may have helped a union gain the powers of bargaining representative established by the Act, the union has not been authorized to discriminate in the exercise of those powers. The Act and the Board's implementa- tion of it can hardly be said to be "significantly involved" in the union's discrimination, since the duty of fair representation in its various forms specifically prohibits a union from practicing unlawful discrimination under the authority of the Act. There- fore, the Board, while it may extend the Act's protection to the union, is not involved in the union's discriminatory activities, a requirement of the govern- mental action doctrine. This view is buttressed by the indisputable fact that the Act predicates a union's bargaining representa- if the union wins the election , for, if a "disqualified" union is not a "labor organization" then the prohibitions of Sec. 8(b) do not apply to it. If the winning but "disqualified" union is a "labor organization," however, then the election is a valid one and, consequently, the employees will not only have been denied the right to be represented by their chosen bargaining agent but will also be denied the opportunity to vote for any representative for another year. 211 NLRB at 147-48, fn. 43. 27 Alto Plastics Manufacturing Corporation, 136 NLRB 850, 851 (1962). 18 See discussion concerning the duty of fair representation, infra HANDY ANDY tive status on its being chosen by a majority of the employees in the bargaining unit, not by the Board. Recognition of that status by the Board, through certification and/or a bargaining order, merely means that the Board is satisfied that a majority of the workers in the unit have chosen this union as their bargaining representative and that therefore the employer is statutorily required to bargain with it. The Board is substantially analogous in this respect to the Pennsylvania Liquor Control Board in the Moose Lodge case, about which the Court noted: Unlike the situation in Public Utilities Comm. v. Pollak, [citation omitted], where the regulatory agency had affirmatively approved the practice of the regulated entity after full investigation, the Pennsylvania Liquor Control Board has neither approved nor endorsed the racially discriminatory practices of Moose Lodge.29 [Emphasis supplied.] Indeed, the courts have found that an exclusive bargaining representative is subject to the duty of fair representation which prevents that union from using its position to unlawfully discriminate. The Congress has also taken steps to eliminate such discrimination based on race, etc., by enacting Title VII of the Civil Rights Act of 1964, as amended. Title VII, as implemented by the Equal Employment Opportunity Commission, performs the very function-using the same test for discrimination-which the Eighth Circuit Court of Appeals in N.L.R.B. v. Mansion House Center Management Corporation 30 would re- quire of the Board.31 The Mansion House court was thus not requiring the Government merely to meet constitutional requirements, but to meet them in a particular way which the court preferred to the methods Congress has chosen. This view is supported by the Supreme Court's recent decision in Washing- ton, Mayor of Washington, D.C. v. Davis,32 in which the Court held that the standard for determining whether governmental action constitutes discrimina- tion proscribed by the Constitution is not the same as the test to be utilized under Title VII. A logical consequence of the Bekins constitutional determination is the conclusion that in their respec- tive areas of authority the Federal agencies have overlapping responsibility for remedying any invidi- ous discrimination by private parties 33 For example, 29 Moose Lodge, supra, 407 U.S. at 175, fn 3. 30 473 F 2d 471 (C.A. 8, 1973). In that case, the court held that the remedial machinery of the Act could not be made available to a labor organization which engaged in unlawful racial discrimination 31 In fact, in supporting its test for racial discrimination in Mansion House, the court cited almost exclusively Title VII cases. 32 426 U S 229 (1976). 33 The Bekins conclusion further implies that Congress does not have the power to vestjunsdiction over claims of racial or other invidious discrimina- tion exclusively in a single agency, the Equal Employment Opportunity 451 one might argue that the Interstate Commerce Commission may not constitutionally approve a route of a common carrier which engages in discrimi- natory hiring practices or that the Securities and Exchange Commission is prohibited from approving a prospectus of a corporation which engages in such practices. This argument was recently rejected by the Supreme Court in National Association for the Ad- vancement of Colored People v. Federal Power Com- mission,34 in which the Court held that the FPC does not have the authority to promulgate rules prohibit- ing its regulatees from engaging in discriminatory employment practices , but that the Commission does have authority to consider the consequences of employment discrimination in performing its man- dated regulatory functions. In that case, the Court discussed extensively the petitioner's argument that the references to the "public interest" in the Gas and Power Acts35 authorized "if indeed it did not require" the FPC to promulgate such rules . Rejecting this argument, the Court emphasized that it was necessary to look to the purposes of the Gas and Power Acts and: ... that the principal purpose of those Acts was to encourage the orderly development of plentiful supplies of electricity and natural gas at reason- able prices. While there are undoubtedly other subsidiary purposes contained in these Acts, the parties point to nothing in the Acts or their legislative histories to indicate that the elimination of employment discrimination was one of the purposes that Congress had in mind when it enacted this legislation. The use of the words "public interest" in the Gas and Power Acts is not a directive to the Commission to seek to eradicate discrimination, but, rather, is a charge to promote the orderly production of plentiful supplies of electric energy and natural gas at just and reasonable rates. [Footnotes omitted.]36 Mr. Chief Justice Burger, in a concurring opinion, further stated: If Congress had mandated duplicative regulation, the result, however inefficient, would be none of our concern. But Congress did not do so. It centralized responsibility in the Equal Employ- ment Opportunity Commission. To the extent that Commission. This conclusion is clearly wholly untenable. See 42 U. Chi L Rev 1, 10(1974). 34 425 U.S. 662 (1976). 35 See, e.g., 16 U.S.C. §824(a): "the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest." Similarly, Sec. 1(b) of the National Labor Relations Act, as amended, refers to the policy of the Act to "define and proscribe practices on the part oflabor and management which affect commerce and are inimical to the general welfare." 38 425 U.S. at 669-670 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the judiciary orders administrative responsibility to be diffused, congressional intent is frustrated, regulated industries are subjected to the com- mands of different voices in the bureaucracy, and the agonizingly long administrative process grinds even more slowly. To suggest, for example, that the FPC could deny a license on account of a regulatee's discriminatory employment practices ... is to thrust the Commission into a complex, volatile area for which Congress has already assigned authority to the EEOC. [Emphasis in original.]37 Furthermore, as Professor Meltzer of the University of Chicago has noted,38 "An administrative agency generally does not have jurisdiction to invalidate important elements of its enabling legislation." In Johnson, Administrator of Veterans' Affairs v. Robi- son,39 Mr. Justice Brennan, speaking for the majority of the Court, quoted with approval Mr. Justice Harlan's concurring opinion in Oestereich v. Selective Service System Local Board No. 11, Cheyenne, Wyom- ing,40 for the proposition that "[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies." 41 In our view, the Bekins majority ignored this principle. For, by concluding that "[t]o construe the mandatory language of the statute without reference to . . . constitutional issues would cause the statute itself to fall afoul of .. . constitutional limitations," 42 the majority members in effect arrogated to this Board the power to determine the constitutionality of mandatory lan- guage in the Act we administer, a power that the Supreme Court has indicated we do not have. This view is further reinforced by the Supreme Court's recent decision in Hudgens v. N.L.R.B. 43 A majority of the Court there held that certain consumer picketing by a labor organization was not protected by the first amendment and that, therefore, the Act was the sole standard to be applied in determining whether or not the activity was protected. In this regard, the Court noted the following with respect to the Board's authority: Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware Co. v. N. L. R. B., 407 37 425 U.S. at 673-674 38 "The National Labor Relations Act and Racial Discrimination. The More Remedies, the Better?" 42 U. Chi. L. Rev. 1, 20, fn 93 (1974). 39 415 U S. 361 (1974). 40 393 U.S. 233, 242 (1968) 41 415 U S. at368. 42 211 NLRB at 139 U.S. 539, 543. What is "a proper accommodation" in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspic- uous contrast to the duty of a court in applying the standards of the First Amendment, which requires "above all else" that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content." 44 Issuance of a certification to a union which has won a fairly conducted valid election is mandated by the Act. As the dissenters in Bekins emphasized: Congress in Section 9(c)(1) directed that "[w ]henever a petition has been filed, in accor- dance 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 affect- ing commerce exists shall provide for an appropri- ate hearing.... 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 unfairness in the election itself, the section commands the Board to issue a certification of representative to the winning labor organization. [Footnotes omitted.145 We conclude that the Bekins doctrine will signifi- cantly impair the national labor policy of facilitating collective bargaining, the enforcement of which is our primary function. First, the workers in the unit will be denied the "right guaranteed them by Section 7 of the Act to bargain collectively through representatives of their own choosing," 46 which could be the only effective bargaining representative available to them. Indeed, even a union which practices some unlaw- ful discrimination may be the best one available in the opinion of the workers in the unit, who are given the right to decide for themselves by the Act. Even if minority members of the unit are convinced that the union will fairly represent them, and vote for the union under the Bekins approach, a bargaining order may still have to be denied.47 Yet, the minority workers might not be helped by keeping the union out, since they will then be at the mercy of their 43 424 U.S 507 (1976). 44 424 U.S at 521. 45 211 NLRB at 147. 46 See Bekins, 211 NLRB at 148, dissenting opinion. 47 In Mansion House, the one black member of the bargaining unit signed an authorization card. The Board thought this was significant, but the court ignored this fact. 473 F.2d at 475. HANDY ANDY employer who has no duty of fair representation to fulfill, who may act to the detriment of all the workers, and who may also discriminate against minorities. In short, a union that has discriminated actively in the past and still has a racial imbalance may be preferable for minority workers to no union at all. Second, employers faced with the prospect of unionization will be provided and have been provid- ed under the Board's Bekins doctrine with an incentive to inject charges of union racial discrimina- tion into Board certification and bargaining order proceedings as a delaying tactic in order to avoid collective bargaining altogether rather than to attack racial discrimination. Not only does the Bekins approach impair the national labor policy favoring collective bargaining, but it is ineffective in implementing an antidiscrimi- nation policy. Denying certification and bargaining orders to discriminating unions may seem to be an effective sanction as the status of bargaining repre- sentative is the source of a union's power. However, many unions have no need of Board aid to gain or keep the position of bargaining representative. Most unions do not resort to certification elections to establish their majority status, and many unions which are certified would not be harmed by losing their certifications. Entrenched unions, which already have well-established bargaining relationships with employers, need no aid from the Board in maintain- ing their positions. Powerful unions, which can make effective use of such traditional self-help remedies as striking and picketing to force employers to bargain, have no need for bargaining orders. These powerful and entrenched unions are the ones with the least natural incentive to lower racial barriers, because they do not have to worry about attracting votes at representation elections as the weaker unions must. Thus, the Bekins remedies fail to reach those unions likely to be the worst offenders. In addition, Bekins, by increasing the duration of representation cases, would create problems in applying Section 8(b)(7)(c) to picketing by unions whose representational eligi- bility is being litigated or has been denied by the Board. To prevent a union found ineligible for certification from engaging in recognitional picketing and thereby to secure the representative status unavailable through the Board's usual representation case processes, and to prevent the prospect of a series of election petitions followed by recognitional picket- ing, the Board would be under pressure to disregard the literal language of Section 8(b)(7)(C) by making any recognitional picketing by an ineligible union a violation of that section.48 48 Bekins, 211 NLRB at 147, fn. 43 , dissenting opinion. 49 Even in cases where the Board has held, prior to an election, that a union was disqualified from representing employees, such finding has been 453 Also, under the majority Bekins holding, a labor organization could be denied certification upon the mere presumption that it will fail to discharge its responsibility to represent employees in this unit fairly solely because it has failed to represent employ- ees fairly in some other bargaining unit, rather than on proof of such dereliction as to unit employees in a revocation proceeding. In fact, the Employer herein, in seeking to prevent the issuance of certification, relies upon discriminatory provisions in the Union's contracts in other bargaining units with other em- ployers, contracts to which this Employer has never been a party and which were found to be unlawful solely because they perpetuated the other employers' past discrimination. For the Board to conclude that there will be further unlawful conduct solely on the basis of such evidence is directly contrary to our longstanding policy. Traditionally, as is true of virtually all court 'and administrative determinations, the Board's fmdings and remedies apply only to the particular parties before us. . The Bekins holding further would lead to anoma- lous situations such as that where an employer exercises exclusive control over hiring, resulting in the total absence of female and black employees in the unit, yet it is argued that this situation constitutes evidence of the union's propensity to practice dis- crimination and certification of the union would perpetuate this condition. In these circumstances it would be ludicrous to excuse the employer from its bargaining obligation. In the instant case, the Employer concedes that, in a bargaining unit comprised of 211 employees, 58 are black and 114 are Spanish-surnamed Americans. Inasmuch as the Union won the decertification election by a vote of 108 to 66, simple arithmetic establishes that a substantial percentage of the minority employees voted in favor of continued representation by the Union. This Union has repre- sented these employees and, presumably, these em- ployees would not have selected it again as their collective-bargaining agent had the Union previously discriminated against them or had they considered it likely that the Union would do so in the future. Thus, the argument raised by the Employer here runs counter to our basic policy discussed above of looking only at the conduct of the parties to our proceedings vis-a-vis each other.49 Indeed, it appears that the Employer's purpose is to delay the onset of bargaining, rather than to protect the minority or female employees from actual discrimination by the bargaining representative. predicated on the labor organization's conflict of interest with employees in the spec fc unit sought Harlem River Consumers Cooperative, Inc, 191 NLRB 314 (1971); Bambury Fashions, Inc, 179 NLRB 447 (1969) 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Questions concerning representation must be expeditiously resolved in order to achieve the statuto- ry objective of fostering collective bargaining and assuring stability in labor-management relations. To that end, Congress chose to deny the parties judicial review of representation proceedings and to exempt such proceedings from the strictures of the Adminis- trative Procedure Act.50 For the same reason, repre- sentation questions are decided in nonadversary, factfinding proceedings. The overriding importance of allowing employees to decide as expeditiously as possible whether or not they desire a bargaining representative justifies elimination of these procedur- al safeguards in representation cases. This is not to say that the Board will never consider such issues in representation proceedings. Rather, we have and will continue to consider the impact of unlawful discrimination where such consideration is required to preserve the integrity of the Board's own processes. Thus, the Board has long held that it would not apply its contract-bar rules so as to shield collective-bargaining agreements which patently dis- criminate between black and white employees from the challenge of otherwise appropriate election peti- tions.51 In reaching this conclusion, the Board specifically recognized that to hold otherwise would be inconsistent with the Supreme Court's condemna- tion of governmental sanctioning of racially separate groupings.52 Similarly, in order to insure fairness in Board-conducted elections, the Board has held that an employer's preelection propaganda which consti- tuted "a deliberate, sustained appeal to racial preju- dice . . . created conditions which made impossible a reasoned choice of a bargaining representative."53 The decision emphasized that "[t]he Board does not intend to tolerate as `electoral propaganda' appeals or arguments which can have no purpose except to inflame the racial feelings of voters in the election." 54 50 American Federation of Labor, et a! v N.LR.B., 308 U 5.401, 409-411 (1940) 5i Pioneer Bus Company, Inc, 140 NLRB 54 (1962). 52 Brown, et a!. v. Board of Education of Topeka, et a!, 349 U.S. 294 (1954); Burton v. Wilmington Parking Authority, et al., 365 U.S. 715 (1961). We emphasize that Pioneer Bus, supra, is not statutorily mandated Our contract- bar rules are wholly discretionary and, consequently, we need not recognize an existing collective-bargaining agreement as a bar to an election where to do so would not contribute to the stability of labor relations but would have the reverse effect. See The Pulitzer Publishing Company (Owner and Operator of Stations KSD and KSD-TV), 203 NLRB 639 (1973). 53 Sewell Manufacturing Company, 138 NLRB 66,70 (1962) 54 138 NLRB at 71 See also Glazers Wholesale Drug Company, Inc., 209 NLRB 1152 (1974), in which a majority of a Board panel concluded that an employer's comment that if the union was voted in "the blacks would take over" could be grounds for setting an election aside , although it was not a threat of employer action constituting a violation of Sec . 8(ax 1) of the Act. Also cf. N LR B. v Staub Cleaners, Inc, 357 F.2d I(C.A. 2, 1966) remanding 148 NLRB 278 (1964), Supplemental Decision and Order 171 NLRB 332 (1968), enfd. 418 F.2d 1086 (C.A 2,1%9) 55 In thesd cases, however, the Board was not required to resolve factual disputes . Rather, each instance involved evaluation ofuncontroverted facts as to possible impact on the election process It is thus apparent that the Board has considered, and will continue to consider, in representation proceedings the possible impact of clearly existing invidious discrimination within the unit at issue or of appeals to prejudice directed at employees in such unit in cases where an inquiry into these matters is necessary to protect the fairness of the election process.55 However, because of the essentially nonad- versary nature of representation proceedings, we believe that allegations of invidious discrimination should be considered in such proceedings only when required to fulfill our primary obligation of protecting employees from interference in exercising their right to select a bargaining representative. It is thus apparent that issues involving alleged invidious discrimination by a labor organization should be considered in an adversary proceeding in which the accused union is accorded the full spec- trum of due process, including particularly the right of judicial review.56 This view accords with the basic premise of the Act that a determination that a party has engaged in unlawful conduct under Section 8 may only be made in an adversary proceeding initiated by a charge and followed by an investigation, issuance of a formal complaint, and litigation in a hearing before a duly qualified Administrative Law Judge. Such proceed- ings are at all stages subject to the Administrative Procedure Act and to review by Federal courts of appeals.57 These procedures also accord with the basic procedures required under Title VII, i.e., filing of a charge followed by investigation and, where required, a full court hearing on the merits. Indeed, as Professor Meltzer observed with respect to the Bekins doctrine: In addition, the dissenters' approach would avoid the suspension of important rights on the basis of allegations, and thereby would serve the 56 We agree with our concurring colleague that all fair representation claims must be adjudicated under Sec. 8(b) of the Act and not as a defense to an 8(a)(5) proceeding or in a representation proceeding. 57 Our dissenting colleague disputes our view that under the Bekins approach a union which has been refused certification has very, little opportunity to obtain judicial review of such action. He cites Miami Newspaper Printing Pressmen's Union Local 46 v McCulloch, 322 F.2d 993 (C.A.D.C., 1963), for the proposition that such review is available for cases in which "the Board acts 'in excess of its delegated powers and contrary to a specific prohibition in the Act,' and when such action causes the 'de- pnv[ation ] . . . of a "right" assured ... by Congress.' " 322 F.2d at 994 Assuming that such review is available whenever application of the Bekins doctrine requires the withholding of a certification, it would be available only if, as we believe, that doctrine caused the Board to act "in excess of its delegated powers and contrary to a specific prohibition in the Act." Such review would not be available as to the factual finding that the union engaged in the disqualifying discrimination. Quite naturally, given our disagreement with our colleague as to the merits of the Bekins doctrine, we do not see how the availability of such limited review can be counted as an argument in favor of Bekins. Rather, we believe his observation and the case he cited in support helps to show the essential correctness of our views in the matter HANDY ANDY values of the NLRA, Title VII and our legal system generally. Indeed, it is one of the several ironies of Bekins that the Board will suspend an important right on the basis of allegations of Title VII violations, while a party charged under that title suffers no legal disability until there is a judicial finding upholding the charge.58 We conclude that our statutory function of elimi- nating invidious discrimination by labor organiza- tions is best served by scrutinizing their activities when they are subject to our adversary procedures and remedial orders. Indeed, the Board has long utilized unfair labor practice procedures to consider allegations of invidious discrimination by labor organizations and employers which interferes with Section 7 rights. We have done so with respect to unions by policing their conduct vis-a-vis the employ- ees in units they represent through our power to remedy a labor organization's breach of its duty of fair representation. This doctrine was first enunciated by the Board in Miranda Fuel Company, Inc.: 59 Section 7 thus gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affect- ing their employment. This right of employees is a statutory limitation on statutory bargaining repre- sentatives, and we conclude that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory represen- tative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair. [Foot- note omitted.]60 This doctrine of the duty of fair representation was derived from the Supreme Court's decision in three companion cases : Steele v. Louisville & Nashville Railroad Co.; 61 Tunstall v. Brotherhood of Locomotive Firemen & Enginemen; 62 and Wallace Corporation v. N.L.R.B.63 In Steele and Tunstall, both of which involved racial discrimination by a union which was statutory representative under the Railway Labor Act, the Court concluded that such a representative 56 See Meltzer, supra at p 24. 59 140 NLRB 181 (1962). 60 140 NLRB at 185. 61 323 U S 192 (1944). 62 323 U.S. 210 (1944). 63 323 U.S. 248 (1944). 64 323 U S. at 204 Our dissenting colleague states that "[i In Steele v. Louisville & Nashville Railroad Co the Supreme Court made clear that the Constitution prohibited a labor organization, which was granted a statutory right to bargain exclusively for employees , from engaging in invidious discrimination in their representation." What the Supreme Court held in that case was that the Railway Labor Act imposed such a duty upon the statutory representative (at 202) Of course Justice Murphy, in his concurrence, expressed the view that such a duty was constitutionally mandated (at 209) 455 "cannot rightly refuse to perform the duty, which is inseparable from the power of representation con- ferred upon it, to represent the entire membership of the craft." 64 In Wallace, which did not involve race discrimination, the Court held that the same duty of fair representation was required of bargaining repre- sentatives selected under the National Labor Rela- tions Act. The duty of fair representation has become the touchstone of the Board's concern with invidious discrimination by unions. For example, it is well established that a labor organization's rejection of an employee's grievance solely because of his or her race breaches the duty of fair representation and violates Section 8(b)(1)(A), 8(b)(2), and 8(b)(3) of the Act 65 Similarly, we have held that a union's refusal to process grievances filed to protest an employer's segregated plant facilities constitutes a violation of Section 8(b)(1)(A) 66 In Galveston Maritime Association, Inc.,67 the Board held, again relying on the duty of fair representation, that a union's maintenance of a collective-bargaining agreement which allocated work on the basis of race violated Section 8(b)(1)(A), 8(b)(2), and 8(b)(3) of the Act. The Board premised the 8(b)(2) violation on its conclusion that the establishment, maintenance, and enforcement of discriminatory work quotas based on irrelevant, invidious, and unfair considerations of race and union membership discriminated against employees in violation of Section 8(a)(3) of the Act and that, by causing an employer to so discriminate, a union violates Section 8(b)(2). In holding that the work allocation violated Section 8(b)(3), the Board concluded that "a labor organization's duty to bargain collectively includes the duty to represent fairly," 68 on grounds that collective-bargaining agreements which discriminate invidiously are not lawful under the Act and therefore do not meet the good-faith requirements of Section 8(d). The duty of fair representation is not limited to present discrimination, but is also breached by union policies which perpetuate past discrimination. Thus, in Houston Maritime Association,69 the union had a policy prior to September 1963 of refusing to accept 65 Independent Metal Workers Union, Local No. 1(Hughes Tool Company), 147 NLRB 1573 (1964). 66 Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America AFL-CIO (The Business League of Gadsden), 150 NLRB 312 (1964), enfd 368 F.2d 12 (C.A. 5, 1966). The Board specifically noted that the union's refusal to process the grievances was , based on its belief that discriminatory job conditions should continue and therefore held that the refusal to process a grievance on that ground violated the duty of fair representation. 87 Local 1367, International Longshoremen's Association, AFL-CIO, et al. (Galveston Maritime Association, Inc.), 148 NLRB 897 (1964), Member Fanning concurring. 66 148 NLRB at 899. 69 Houston Maritime Association, Inc, and Its Member Companies, 168 NLRB 615 (1967). 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD black applicants for membership. In the latter part of that month, the union adopted a policy of closing its register of applicants and refusing to accept any further applications regardless of the applicant's race. In addition to finding that the union's new policy violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act as an attempt to perpetuate past discrimination, the Board found that the employers who had partici- pated in the pattern of unlawful conduct had thereby violated Section 8(a)(1) and (3). While these cases clearly illustrate that we provide a remedy for breach of the duty of fair representation, thereby protecting employees from invidious discrim- ination by their bargaining representative, other remedies for a union's unlawful discrimination are also available. For example, we have held that a union commits unfair labor practices by attempting to force an employer to continue discriminatory practices even though no breach of the duty of fair representation is involved.70 Additionally, the Board has, in appropriate cases, revoked the certification of unions which engage in unlawful invidious discrimi- nation.71 As the foregoing discussion indicates, the Board has long recognized its obligation to consider issues concerning discrimination on the basis of race, sex, national origin, or other unlawful, invidious, or irrelevant reasons when they are raised in an appro- priate context, and we shall continue to do so.72 However, on the basis of all the foregoing, although we neither approve nor condone discriminatory practices on the part of unions, we hereby overrule Bekins as we conclude that the holding of that case is neither mandated by the Constitution nor by the Act and is destructive of the policies embodied in Section 9(c) of the Act. We further conclude that issues such as those raised by the Employer herein are best considered in the context of appropriate unfair labor practice proceedings. We do so on the basis of the paramount importance of avoidance of delay in representation cases, the procedural safeguards af- forded in unfair labor practice proceedings which are not available in representation proceedings, the somewhat different purposes served by Section 8 and 70 Local Union No 2, of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Astrove Plumbing and Heating Corp.), 152 NLRB 1093 (1%5), wherein the Board held that a union violated Sec. 8(bX2) and 8(bxlXA) of the Act by engaging in a walkout in order to protest an employer's attempt to remedy its past discrimination. 71 Independent Metal Workers Union, Local No I (Hughes Tool Company), supra 72 Member Fanning notes the dissent's observation in fn. 76 that "Member Fanning has not yet accepted Miranda." This is superficially correct. He does not, for the reasons explained in General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Great Western Unrfreight System), 209 NLRB 446 (1974). But, as he carefully explained in his concurring opinion in that decision, that does not mean that he-any Section 9 of the Act, and the fact that effective procedures already exist for litigation of the type of discrimination alleged by the Employer herein. We therefore overrule the Employer's objection and shall certify the Union as the representative of the employees in the unit found appropriate above. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, General Drivers & Helpers Local Union No. 657, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit found appropriate herein for the purposes of collec- tive bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment: All warehouse employees, dock workers, truckdriv- ers, sanitation drivers and helpers, shipping and receiving clerks, warehouse clerical employees, garage mechanics, fork lift and pallet jack mainte- nance employees and custodial employees em- ployed at the Employer's grocery warehouse, produce warehouse, Harry Tappan Institutional Warehouse and meat products warehouse located in Bexar County, Texas, excluding all other employees including all maintenance and con- struction shop employees, poultry processing plant employees, bakery employees, office clerical employees, guards, watchmen and supervisors as defined in the Act. MEMBER WALTHER, concurring: I agree with my colleagues in the majority that the Employer's objection should be overruled. I agree also with their rationale for doing so to the extent that it is consistent with the views expressed below. With respect to allegations pertaining to a union's breach of its duty of fair representation, not only do I agree with my colleagues that such claims "should more than the Board majority-sanctions or condones union misconduct towards employees. He has found violations of Sec. 8(b)(IXA) in the maintenance of segregated locals , Local No. 106, Glass Bottle Blowers Association, AFL-CIO (Owens-Illinois, Inc.,) 210 NLRB 943 (1974), enfd. 520 F.2d 693 (C.A. 6, 1975); and of Sec. 8(b)(1)(A) and 8(bX2) in a union's coercive advocation and enforcement of racially discriminatory hiring policies, International Brotherhood of Painters and Allied Trades, Local Union 1066, AFL-CIO (W. J. Siebenoller, Jr., Paint Company), 205 NLRB 651 (1973). He has, moreover, found breaches of the duty of fair representation to be violations of Sec. 8(bXIXA), Truck Drivers, Oil Drivers and Filling Station and Platform Workers Local No. 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Associated Transport, Inc.), 209 NLRB 292 (1974); Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp.), 170NLRB 1234(1968). HANDY ANDY be" considered in an adversary proceeding, I think that they must be considered in such a proceeding. Assuming, as I do, that a proper accommodation between this Board and other governmental agencies (e.g., EEOC) requires us to confine our examination to actual discrimination in the particular unit under consideration, fair representation claims are prema- ture in both representation and 8(a)(5) certification- test proceedings-for in neither situation has the union yet been afforded an opportunity to represent the unit employees at all, fairly or unfairly. Such claims would, of necessity, have to relate to potential breaches of the duty of fair representation based upon conduct at other locations, an area of inquiry I would not entertain in any Board proceeding. For this reason, and for all of the due process safeguards attendant to our unfair labor practice proceedings mentioned by my colleagues, I conclude that all fair representation claims must be adjudicated under Section 8(b) of the Act. My colleagues in the majority note that "we have and will continue to consider [in a representation proceeding] the impact of unlawful discrimination where such consideration is required to preserve the integrity of the Board's own processes." To the instances which they cite, I would add yet another: instances in which it can be established through reference to a petitioner's constitution, bylaws, or other written statement of policy, that the petition- er-not an affiliated organization or sister local- restricts access to membership on the basis of race, alienage, national origin, or sex. Should such discrim- ination be found, I would disqualify the petitioner from access to our election machinery until it can establish that the offensive practices have been eliminated. The proviso to Section 8(b)(1)(A), of course, prohibits litigation of membership discrimination claims in an unfair labor practice proceeding. I do not think, however, that the Board should ignore such blatant discrimination. Irrespective of whether we are constitutionally obligated to do so, I would, as a matter of discretion, deny a union which discrimi- nates in this fashion access to our election machinery. In such instances, the discriminatory conduct is open, documented, and pervasive. The step which I recom- mend it seems to me is, in the words of the majority, "required to preserve the integrity of the Board's own processes." 73 In the instant case, the Employer alleged discrimi- nation both in the form of exclusionary membership policies and unfair representation. The evidence which was submitted, however, all related to matters falling within the realm of fair representation. No 73 Since the inquiry would determine the union's qualification to use our election procedures, appropriate membership discrimination claims would 457 evidence was offered in support of the restrictive membership claim. In these circumstances, I agree with my colleagues that the Employer's objection should be overruled. MEMBER JENKINS, dissenting: On June 7, 1974, the Board in Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974), held that the due process clause of the fifth amend- ment precludes its certification as the exclusive representative of unit employees of a labor organiza- tion which engages in invidious discrimination and that a precertification inquiry as to a labor organiza- tion's representation of employees on a nondiscrimi- natory basis is constitutionally required if the issue is timely raised. Two members of the Board dissented from this decision for the reason, among others, that any constitutional obligation of fair representation could be enforced after certification and that to delay certification for an inquiry into the labor organiza- tion's capacity for nondiscriminatory representation would provide "a procedure by which employers opposed to dealing with their employees collectively can delay and forestall the establishment of the collective-bargaining relationship." 211 NLRB at 148. Experience of more than 2-1/2 years with the Bekins decision has provided no evidence of the delays which the dissenting members envisaged and which constituted a principal basis for their dissent. In the intervening years, however, the membership of the Board has changed and today a new majority holds that the due process clause of the fifth amend- ment does not preclude the Board from certifying as the statutory bargaining agent created by the Nation- al Labor Relations Act a union which engages in discriminatory representation, that the statute re- quires the certification of such a union if it is successful in an election, and that for policy reasons, as well as the statutory mandate, charges of discrimi- natory representation "are best considered in the context of appropriate unfair labor practice proceed- ings." Accordingly, it overrules the Bekins decision and forecloses any precertification inquiry into a union's discriminatory representation in the bargain- ing unit in issue. The Board majority in Bekins, of which I was a member, found that such certification "would appear to be sanctioning, and indeed further- ing, the continued practice of such discrimination, thereby running afoul of the due process clause of the fifth amendment." 211 at 139. Nothing has occurred since that decision to undermine the validity of this have to be entertained at the outset of the representation procedure, prior to the direction of an election. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion. I therefore vigorously disagree with today's contrary holding of my colleagues.74 In my colleagues' view the language of Section 9(c)(1) requires the Board to certify a union even though its governing instruments (constitution, char- ter, bylaws, etc.) exclude from its membership black or female employees in the unit or permit black or female employees in the unit to become members only of a segregated local.75 As a result of the Board's certification, the employer is required to bargain with the Union as the exclusive representative of all employees in the unit, minority employees who voted against the union can have no other representation, the Union's status as exclusive bargaining representa- tive cannot be challenged for a year, and there is a presumption that its status as exclusive bargaining representative continues after a year. My colleagues acknowledge "that certification of a labor organiza- tion confers substantial benefits" but nevertheless assert that these benefits which flow directly from the Board's certification do not support a discriminating union in its invidious discrimination. They do not, and cannot, explain how assistance to the union in the exclusive representation of unit employees does not amount to assistance in the union's discrimina- tion when that representation is conducted in accor- dance with the union's discriminatory practices. It is no answer that at some uncertain future date, after the union with Board assistance has carried out its discriminatory practices, unfair labor practice pro- ceedings may be instituted which will bring these activities to a halt. The fact of the matter is that until that day comes, if it ever does come, the Board has fostered invidious discrimination by the statutory agent. The decisions of the Supreme Court leave no room for such Government-supported discrimination. In Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944), the Supreme Court made clear that the Constitution prohibited a labor organization, which was granted a statutory right to bargain exclusively for employees, from engaging in invidious discrimi- nation in their representation. The decisions of the Supreme Court have repeatedly invalidated action taken by Federal or state agencies which have the effect of furthering, supporting, or assisting discrimi- nation in any form. See, e.g., Bolling v. Sharpe, 347 U.S. 498 (1954); Shelley v. Kraemer, 334 U.S. I 74 In earlier decisions the Board has held, on constitutional grounds, that discriminatory practices by a union required the denial of representation privileges Independent Metal Workers Union, Local No. I (Hughes Tool Company), 147 NLRB 1573 (1964); Pioneer Bus Company, Inc, 140 NLRB 54 (1962). 45 1 do not mean to suggest that the present case involves this situation, but the effect of the majority's decision is to require certification of such a union by precluding any precertification inquiry into a union's discriminato- ry practices. In the present case, the objection to certification included the (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715 ( 1961). Since the Board's certification grants a discriminating union the right of exclusive represen- tation, together with various concomitant advantag- es, it seems that my colleagues close their eyes to the facts when they assert that certification does not assist a discriminating union in its discriminatory practices. As the Court stated in N. L. R.B. v. Mansion House Center Management Corporation, 473 F.2d 471, 477 (C.A. 8, 1973), "Federal complicity through recognition of a discriminating union serves not only to condone the discrimination, but in effect legiti- mizes and perpetuates such invidious practices. Cer- tainly such a degree of federal participation in the maintenance of racially discriminatory practices violates basic constitutional tenets." In an attempt to rationalize their conclusion that the due process clause of the fifth amendment does not prohibit the Board's certification of a discriminat- ing union, my colleagues assert that the view of the majority in Bekins that certification of a discriminat- ing union violates constitutional restrictions miscon- strued the Supreme Court delineation of the scope of prohibited state action. After reviewing a number of cases in which the Supreme Court held state action involved with invidious discrimination exceeded constitutional bounds, my colleagues state that such an involvement is found in circumstances, among others, where the Government authorized private discrimination or fostered and encouraged private discrimination. They conclude, however, that certifi- cation of a discriminating union does not sufficiently involve the Board in the union's invidiously discrimi- natory practices to render its action unconstitutional because "a certification is neither more nor less than an acknowledgment that a majority of the employ- ees in an appropriate bargaining unit have selected the union as their exclusive bargaining representa- tive" and does not authorize the union to engage in discrimination. This evaluation of the Board's involvement in the union's discriminatory practices is a patent under- statement of the significant effects of certification. By certification the union becomes the statutory bargain- ing agent with statutory rights. Improper interference with the selection of the bargaining representative is the violation of "public, not private, rights." Virginia Electric & Power Co. v. N.L.R.B., 319 U.S. 533, 543 claim that the union excluded "persons from membership on the basis of race, ahenage or national origin." Local 657, which was the subject of the Employer's certification objection in this case , has been found accountable for discriminatory practices in establishing seniority rosters in its collective- bargaining agreements with three other employers engaged in similar business in this same area. Rodriguez v. East Texas Motor Freight, supra; Herrera v Yellow Freight System, Inc., supra, Resendis v . Lee Way Motor Freight, Inc, supra. HANDY ANDY (1943). The usual form of certification of representa- tive provides that the "labor organization is the exclusive representative of all the employees in the . appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment." The invidious discrimination of a discriminating union is practiced in the very areas to which the certification as representative relates. As previously noted, certification of a union confers the exclusive right to represent all employees in the bargaining unit, the right to be free from challenge for a year, and a presumption that its majority status continues after a year. Without the Board's certification a labor organization does not enjoy the rights of a statutory bargaining agent. Obviously, a union's status as the statutory bargaining agent enhances its position with respect to both the employer and the unit employees. By certifying a union which excludes blacks or women from membership or segregates them in a separate local, the Board directs the employer to bargain exclusively with this discriminating union as representative of the excluded or segregated blacks or women. Minorities do not have a protected right, separate from the certified representative, to engage in concerted activities to protest discrimination by their employer. Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975). Certification is thus an integral part of the representa- tion function in which the union practices discrimina- tion and is patently direct participation and assis- tance by a Government agency, contrary to constitu- tional strictures, in the union's discriminatory repre- sentation. Accordingly, "[w]here a governmental agency recognizes such a union to be the bargaining representative it significantly becomes a willing participant in the union's discriminatory practices." Mansion House, supra, 473 F.2d at 473. The Board's conferring the status of statutory bargaining agent upon a union which engages in invidious discrimina- tion clearly fosters and supports the union's discrimi- natory practices and this constitutes the Board's involvement in them under the standards which my colleagues acknowledge but contend are not applica- ble here. As the Supreme Court stated in Burton v. Wilmington Parking Authority, supra, where the state authority merely leased space in a public building to a private restaurant which denied service to blacks, there existed "that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn." 76 In Steele v. Louisville & Nashville Railroad Co., 323 U.S. at 198, the Supreme Court held that if a statute confers on a statutory bargaining representative the right to discriminate against members of the bargaining unit . . constitutional questions anse. For the representative is clothed 459 The Board's decisions holding breach of the duty of fair representation to be an unfair labor practice, with which I of course fully agree, are no substitute for the disqualification of a discriminating union in a repre- sentation proceeding. The fifth amendment does not permit a Government agency to provide the instru- ment for practicing discrimination merely because at some uncertain future date the Board may have an opportunity to terminate this discrimination in unfair labor practice proceedings set in motion by the charges of private parties if the General Counsel decides to file a complaint. The Board cannot initiate unfair labor practice proceedings. Moreover, for a variety of reasons, such proceedings may never be instituted notwithstanding the discriminatory exclu- sion of minorities from the union or from employ- ment in the certified unit. The effect of a union's exclusion of blacks or women from membership or their segregation in separate locals may discourage them from seeking or retaining employment with an employer who is compelled by the Board's certification to bargain exclusively with the discriminating union. An em- ployer confronted with a certification may find it expedient to enter into a collective-bargaining agree- ment with a union which excludes blacks or women from employment. In these situations, the possibility of invidious discrimination being raised as an unfair labor practice is minimized or eliminated. The certification of the Board thus serves as an instrument for the perpetuation of invidious discriminatory practices. It is clear to me, therefore, that the due process clause of the fifth amendment requires that certification be denied whenever the evidence estab- lishes that the labor organization's representation in the unit for which it requests certification will be infected with invidious discrimination. My colleagues contend that certification of a union successful in an election is mandatory under the Act and that an administrative agency cannot pass upon the constitutionality of a statute whose obligation it is the agency's to administer. This argument is com- pletely devoid of merit.76 Certainly an agency is not holding a statute unconstitutional when it decides to administer it in a constitutional manner. Direct commands in a statute are impliedly made subject to constitutional limitations. My colleagues would meet the problem of eliminating invidious discrimination by labor organizations through its power in unfair labor practice proceedings to remedy the union's breach of its duty of fair representation. But the with power not unlike that of a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy or discriminate against the rights of those for whom it legislates and which is also under an affirmative constitutional duty equally to protect those rights 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act nowhere expressly imposes on the statutory bargaining agent a duty of fair representation. This doctrine, first enunciated by the Board in Miranda Fuel Company, Inc., 140 NLRB 181 (1962), as my colleagues acknowledge,77 was derived from the Supreme Court's decisions in Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210 (1944); and Wallace Corporation v. N.L.R.B., 323 U.S. 248 (1944). In these cases the Supreme Court held that a statutory duty of fair representation by the exclusive bargaining repre- sentative must be implied for constitutional reasons. Thus, in attacking the problem of invidious discrimi- nation by reading into the statute a duty of fair representation, my colleagues rely no less on constitu- tional requirements than they would if they held nondiscrimination to be a condition to certification. Similarly, in Pioneer Bus Company, Inc., 140 NLRB 54 (1962), the Board took account of constitutional requirements in denying the benefits of its contract- bar doctrine to a discriminating union. And in Independent Metal Workers Union, Local No. 1 (Hughes Tool Company), 147 NLRB 1573 (1964), the Board relied on constitutional doctrine for its holding that racial segregation in membership by a statutory bargaining representative cannot be countenanced by a Federal agency. Miranda, Pioneer Bus, and Hughes Tool are relied on approvingly by my colleagues. It is clear that the Board is required to interpret and apply the Act in a manner which will avoid offense to the Constitution and that in doing so it is not adjudicat- ing the constitutionality of congressional enactments. My colleagues' decision does further violence to constitutional doctrine in its suggestion that a dis- criminating union which wins an election should be certified because it may be preferred by minority employees as better than no union at all. The majority does not indicate how the minority employ- ees' preference in this respect would be ascertained. Moreover, as to a discriminating union's being preferable to none at all, it might just as readily be claimed that segregated school systems should have been upheld because they were better than none at all and a state might refuse to support a desegregated system. The effect of my colleagues' position is that the Board can properly assist in the perpetuation of discriminatory representation because such represen- tation might be preferred to no representation. No authority is cited for this bizarre suggestion and I am certain none can be found. The constitutional impediment to certification of a discriminating union forecloses consideration of policy reasons for adopting a procedure which grants certification and postpones determination of disqual- ifying discrimination to a later date. But even if there were no such impediment, I find to be singularly lacking in substance the reasons advanced by my colleagues for postponing until after certification the determination of invidious discrimination questions. The principal concerns of my colleagues appear to be that employers will seize upon the opportunity to raise questions of discrimination as a device for delaying certification and collective bargaining, that they will present evidence of discrimination of a character that does not establish that the particular local involved will engage in discrimination in the unit for which certification is sought, and that in the certification stage there is no opportunity for an adversary hearing which will permit the question of discrimination to be determined properly. In attempted support of their argument that em- ployers will use objections to certification based on discrimination as a tool for delaying or avoiding collective bargaining, my colleagues cite as illustra- tions cases in which the evidence of a labor organiza- tion's discriminatory conduct fell far short of estab- lishing that it would engage in discrimination in the unit for which certification was currently being sought. If there is a propensity of employers to submit inadequate evidence of discrimination in support of an objection to certification, this is hardly relevant to the question whether certification should be denied when conclusive evidence of such discrimination is presented. I agree with my colleagues that disqualify- ing evidence of discrimination must relate to the union's future course of conduct in the unit involved in the representation proceeding and must do more than provide a basis for speculation as to the union's conduct as the certified bargaining representative. My colleagues apparently assume that it is impossible to prove disqualifying discrimination before certifica- tion. But certainly where a union's governing instru- ments require it to exclude minorities from member- ship or segregate them in separate locals in the unit for which certification is sought, there is irrebuttable evidence of invidious discrimination. What lesser evidence will satisfy the Board is a matter for case-by- case determination. To hold, as my colleagues do, that because some evidence will be insufficient no evidence will be permitted, is a perversion of the administrative process. Nor can it be persuasively maintained that the mere opportunity to present inadequate evidence of discrimination will unduly delay the bargaining process. The more than 2-1/2 years' experience with the Bekins decision has shown that our Regional Offices and the Board itself have been able to deal expeditiously with spurious objec- 77 Member Fanning has not yet accepted Miranda. HANDY ANDY 461 tions to certification based on alleged discrimination, and that no undue delays have occurred. See, e.g., Grants Furniture Plaza, Inc. of West Palm Beach, Fla., 213 NLRB 410 (1974).78 My colleagues further claim that determination of an invidious discrimination objection should be made in an adversary proceeding which is not available during the representation stage of a case. This is clearly in error. If a genuine issue of discrimination is presented as an objection to certification after an election, the procedure contemplated by Bekins would be to designate a Hearing Officer to conduct a hearing on the question of discrimination and any other objections to the election which involved genuine issues of fact. At this hearing all interested parties would have an opportunity to present evi- dence, cross-examine witnesses, submit briefs, and, if desired, to participate in oral argument. After the Hearing Officer files his report and recommenda- tions, the parties may file exceptions and briefs with the Board after consideration of which the Board will render its decision. If certification is granted, the employer may obtain judicial review in a court of appeals after the summary judgment finding of an 8(a)(5) violation based upon its refusal to bargain. May Department Stores Co. d/b/a Famous-Barr Co. v. N.L.R.B., 326 U.S. 376 (1945). If certification is denied, a union may obtain judicial review by means of an independent action in a United States District Court. Miami Newspaper Printing Pressmen's Union Local 46 v. McCulloch, 322 F.2d 993 (C.A.D.C., 1963). These opportunities for hearing and review are obviously adversary in character (see Miami Newspa- per case, supra at 998) and meet all the requirements of due process. To conclude, the Bekins decision properly holds that certification of a discriminating union supports and involves a Government agency in the discrimina- tion in violation of the due process clause of the fifth amendment. Policy arguments are, accordingly, irrel- evant but, in any event, those advanced by my colleagues are entirely speculative and not supported by experience under the Act. I therefore consider the overruling of Bekins to constitute clear legal error. 78 In Grants, the Board adopted the Regional Director's recommendation membership without evidence of who controlled hiring practices and that the employer's objection to certification on the ground that the union evidence that a complaint had been filed by the Department of Justice was guilty of discriminatory practices be overruled without a hearing. The alleging discrimination were not sufficient to warrant a hearing and certified Board held that statistical evidence of the composition of the union 's the union.