Bell & Howell Co.

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bell & Howell Company and Local 399, International Union of Operating Engineers, AFGCIO. Case 13-CA-13680 June 24, 1977 SUPPLEMENTAL DECISION AND ORDER On September 29, 1975, the National Labor Relations Board issued its Decision and Order1 in the above-entitled proceeding finding that Respon- dent, hereinafter also called Bell & Howell, had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(5) of the National Labor Relations Act, as amended. Respon- dent was ordered to cease and desist therefrom, and, upon request, to bargain collectively with Chargng Party, hereinafter called the Union, as the exclusive bargaining representative of the employees in the designated unit.2 On December 22, 1975, the Board notified the parties that it had decided, sua sponre, to reconsider its decision, and on January 19, 1976, notified the parties that oral argument would be held on February 2, 1976. Oral argument was held as scheduled,3 and, thereafter, the American Federation of Labor and Congress of Industrial Organizations and the General Counsel each filed a statement of position. The Board has reconsidered its decision in light of the entire record, including the oral argument and statements of position, and has decided to reaffirm its previous Decision and Order for the reasons set forth below. Respondent contends that the certification issued in the underlying representation proceeding4 was invalidly issued because the Board refused to conduct a precertification investigation and hearing on the issue of whether the Union discriminates against women with respect to Union-maintained benefit plans and membership requirements and deprives women of an opportunity for employment as stationary engineers in the Chicago area. It is Respondent's view that the existence of such discrim- ination in any or all the particulars urged would require the Board, in accordance with the due process clause of the fifth amendment to the Constitution, to disqualify the Union from serving as the exclusive representative of Respondent's employ- ' 220 NLRB 881. All stationary engineers and stationary firemen in Department 2889 at the Employer's facility at 7100 N. McCormick Blvd., Lincolnwood, Illinois, but excluding office clerical employees, plant clerical employees, guards and supervisors as defined in the Act, and all other employees. The Board granted the request of the United States Chamber of Commerce and in^ A l l r ~ l j ~ ~ n Federatiu~~ UI LLIV~ dnd Congress of Industrial Organizations to participate in the oral argument as amici curiae. Bell & Howell Company, 2 13 NLRB 407 (1 974). 230 NLRB No. 57 ees and to refuse to certify it as such representative notwithstanding it had won an election duly con- ducted in accordance with the provisions of Section 9 of the Act. Respondent further contends that. assuming constitutional considerations do not oper- ate to invalidate the certification, such considerations nevertheless preclude the Board from issuing an order requiring Respondent to bargain with the Union because such an order places the imprimatur of the Federal Government on those discriminatory practices. In our recent decision in Handy Andy,= we overruled the Bekins decision6 and set forth the reasons we believe that relevant constitutional and statutory considerations do not require or warrant withholding certification of a union which has been duly selected as exclusive representative of an employer's employees.7 In accordance with that decision, we find no merit to Respondent's argument that our certification of the Union is defective and without force and effect, but, to the contrary, we find that the certification was properly issued in accor- dance with due process of law. We also find no merit to Respondent's contention that the Board is constitutionally proscribed from ordering Respondent to bargain with the Union because of the latter's alleged discriminatory practic- es. The issue before us is whether Respondent refused and failed to recognize and bargain with the certified representative of its employees as their exclusive bargaining representative.8 The refusal and failure are admitted by Respondent, and we have found that the certification was validly issued in effectuation of statutory policies. Clearly, then a violation of Section 8(a)(5) of the Act which makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representative of his employees" has been made out. Contrary to the claim of Respondent, neither our Order nor court enforcement thereof aids or encour- ages the Union with which Respondent is required to bargain to engage in such invidious discrimination; indeed, such practices by the Union are prohibited by other provisions of the Act. For, it is well established that the Union's status as exclusive representative imposes upon it the statutory obliga- 5 Handy Andy, Inc., 228 NLRB 447 (1977). 6 Bekinr Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974). ' See also the dissenting opinion of Members Fanning and PeneUo in Bekinr, supra. 8 Because of Respondent's admitted refusal to recognize and bargain with the Union, the latter has never had the opportunitv to represent the employees in the bargaining unit and, thus, has never had the opportunity to demonstrate that its representation of those employees would accord with the dic~ates of the Act. BELL & HOWELL. o represent all employees in the unit fairly and od faith without invidious discrimination.9 As eme Court recently had occasion to note in a it was'also argued that the system of obligations established by the Act to collective-bargaining relationship should the paramount value of combating racial In vesting the representatives of the majority with this broad power Congress did not, of course, authorize a tyranny of the majority over minority interests. First, it confrned the exercise of these powers to the context of a "unit appropriate for the purposes of collective bargain- ing," i.e., a group of employees with a sufficient commonality of circumstances to ensure against the submergence of a minority with distinctively different interests in the terms and conditions of their employment. See Allied Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 171 (1971). Second, it undertook in the 1959 Land- rum-Griffin Amendments, 73 Stat. 519, to assure that the minority voices are heard as they are in the functioning of a democratic institution. Third, we have held, by the very nature of the exclusive bargaining representative's status as representa- tive of all unit employees, Congress implicitly imposed upon it a duty fairly and in good faith to represent the interests oP minorities within the unit. Vaca v. Sipes, supra; Wallace Corp. v. N.L.R.B., 323 U.S. 248 (1944); cf. Steele v. Louisville & N.R Co., 323 U.S. 192 (1944). And the Board has taken the position that a union's refusal to process grievances against racial dis- crimination, in violation of that duty, it an unfair labor practice. Hughes Tool Co., 147 NLRB 1573 (1964); see Miranda Fuel Co., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963). Indeed, the Board has ordered a union implicated by a collective-bargaining agreement in discrimination with an employer to propose specific contractual provisions to prohibit racial discrimination. See Local Union No. 12, United Rubber Workers of America v. N. L.RB., 368 F.2d 12 (C.A. 5, 1966) (enforcement granted).lO From the foregoing it is clear that the right of employees to be free from invidious discrimination in the representation afforded them by their bargaining representative is protected by the Act, which, it has The Wallace Co'poration v. N.LRB., 323 US. 248 (1944). lo Emporium Capwell Co. v. Western Addition Community Organization, 420 US. 50. M-65 (1 975). l1 42 USC. 2000e. " 42 USC. 2-2). la See M m e Lwge No. 107 v. Irvis, 407 US. 163 (1972); Jackron v. COMPANY been held, makes it an unfair labor practice for the representative to engage in such practices and provides employees with remedies against such conduct. For this reason, if not for any other, Respondent's contention that constitutionally the Board cannot issue, and the courts cannot enforce, an order directing Respondent to bargain with the Union as the employees' exclusive bargaining repre- sentative must fail. For, given the statutory restric- tions upon the powers and authority of the exclusive majority representative, it simply cannot be estab- lished that either the certification or the bargaining order makes the Union's discriminatory practices the actions of the Government. To the extent the Union's discriminatory practices respecting eligibility for membership and Union-provided benefits bear upon and affect the Union's representation of Respondent's employees with respect to wages, hours, and terms and conditions of employment, they are undertaken in contravention of the certifica- tion and the bargaining order, not in accordance therewith, and the employees have a statutorily prescribed method of redress designed to permit elimination of the offending practices while preserv- ing the collective-bargaining relationship. To the extent that such practices may be beyond the reach of the Board, because they do not impinge upon the organizational or representational rights of employ- ees, Congress has provided other means by which the employees affected may seek redress and relief. Thus, in the Civil Rights Act of 1964, as amended," the Equal Employment Opportunity Commission has been given authority to eliminate "unlawful employ- ment practices" of unions certified by the Board as exclusive bargaining representatives. Such unlawful practices include the practice of discriminating against, segregating, or otherwise classifying mem- bers on the basis of race, color, sex, religion, &or national origin.lt Again, such practices are not taken pursuant to or in accordance with governmental approval but in contravention of these statutory enactments and well-established governmental policy which gives the victims of such practices appropriate means of redress and relief designed to eliminate the offensive practices while preserving the' collective- bargaining relationship. Therefore, it is dear from all of the foregoing that enforcement of the bargaining order herein does not constitute governmental action fostering or encouraging adherence to the claimed discriminatory practices of the Union.13 We recognize, of course that - Metropolitan Edison Co., 419 US. 345 (1974). With all due rrspcct to the courts of appeals which have held contrary to our views h a , we decline to follow their lead In N.LRB. v. Mamion House C e w Mana~ement Cop, 473 F.Zd 471 (Ck 8, 1973), we note that the court fded to consider the teachings of Maare Lodge and did not have the benefit of the Jackson decision. Nor did it consider the fact that the respondent employer thercin, 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . .national labor policy embodies the principles of nondiscrimination as a matter of highest priority, Alexander v. Gardner-Denver Co., 415 US. 36, 47 (1974), and it is a commonplace that we must construe the NLRA in the light of the broad national labor policy of which it is a part. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 456458 (1957).14 However, in determining whether these broad princi- ples justify the withholding of a bargaining order in a case such as this, consideration must be given to whether such action promotes or runs counter to the basic policies and purposes of the Act we adminis- ter.15 We have been admonished against both a single-minded administration of the Act which ignores other and equally important congressional objectives,l6 and against enforcing policies given to others to administer in the guise of enforcing the provisions of the Act.17 Congress has charged the Board with the task of administering a statute which declares it . . .to be the policy of the United States to eliminate the causes of certain substantial ob- structions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.18 To this end Congress provided in the Act for orderly procedures by which employees can select a union to like the Respondent here, was claiming possible infringement of the constitutional rights of its employees. As the Supreme Court has noted, Respondent "can complain only of the infringement of its own constitution- al immunity, not that of its employees." Erie Railroad Company v. Williams, 233 U.S. 685, 697 (1914); Virginia Railway Co. v. System Federation No. 40, Railway Employees Department of the American Federation of lobor, 300 US. 515. 558 (1937). See also Leslie, "Governmental Action and Standing; NLRB Certification of Discriminatory Unions," I Ark. St. L. J. 35, 3845 (1974). Even were this an appropriate situation in which to permit an exception to that rule so that Respondent could assen the wnstitutional rights of its employees, its defense would still founder on the fact, as noted above, that Congress has established appropriate administrative machinery in the Act itself to safeguard those very rights while still ensuring to employees the right to be represented for purposes of collective bargaining by their duly designated representative. ' 4 Emporium CapweN Co. v. WACO, 420 US. at 66. 'J National Association for the Advancement of Colored People v. Federal Power Commission, 425 US. 662 (1976). l6 Southern Steamh~j~ CO. V. N.LR.B., 316 US. 31,47 (1942). l7 Local 1976, United Brotherhood of Carpenters and Joiners of America, A.Ff !Sand Door d P))wndpzj -! 8.1 R.B, 157 U.S 93, 108-1 I1 (1958) ' 8 Sec. 1 of the Act. l9 For example, Sec. 8@)(1)(A) provides a statutory procedure by which employees may obtain elimination of offensive discriminatory practices act as their exclusive representative as well as giving the union, when so selected, a method of enforcing against their employer its right to so function. Congress has also provided the statutory methods by which the employees can enforce against the union their right to be represented fairly and in good faith without invidious discrimination. Congress has stopped short, however, of giving the Board authority over the internal affairs of unions, though it has regulated such matters by the passage of other legislation, notably the Civil Rights Act of 1964, as amended, and the Labor Management Reporting and Disclosure Act of 1959 (73 Stat. 419), both of which seek to protect employees in their dealings with their unions. Whether considered solely from the standpoint of the Act we administer or as a matter of accommodating the several statutory schemes that together make up our broad national labor policy, we believe that withholding a bargain- ing order in circumstances such as those before us runs counter to our duty. We are persuaded that it is far better to preserve and promote the collective- bargaining relationship once properly established by an order requiring Respondent to bargain with the duly selected exclusive representative than it is to destroy it by withholding the bargaining order. The first course gives the bargaining representative no license to engage in the discrimination complained of by Respondent; indeed, any such action can be dealt with in a statutorily prescribed way by employees whose rights are infringed.19 The second destroys the bargaining relationship (and may even eliminate the employees' right to proceed against the Union to eliminate the offensive practices), and does so without the certainty that the Union will mend its ways. To the extent this Board is charged with responsibility for carrying out aspects of the broad national policy against invidious discrimination in which frustrate their right to fair representation by their bargaining representative or which otherwise restrain or coerce them in the exercise of Sec. 7 rights. 'Sec. 8@)(2) enables them to obtain the elimination of union- sponsored discriminatory hiring practices. Sec. 8@)(3) and Sec. 8(a)(5) provide avenues by which the parties and employees can insure that their exclusive representative and their employer negotiate about the elimination of offensive discriminatory t e n s and conditions of employment. Such unfair labor practice proceedings, when invoked by properly filed charges with the Board, are prosecuted by the Government and have the merit of dealing with offensive practices that have occurred and are continuing to occur in the bargaining unit, rather than with those which may possibly occur in the future, or have occurred in different bargaining uniu. The unfair labor practice proceeding will provide a sound evidentiary basis for remedial orders tailored to the situation calling for redress and which normally will permit the collective-bargaining relationship to continue to function free from the stultifying effect of the offensive practices. In appropriate circumstances, the remedy may even include revocation of the bargaining representative's authority to represent the employees, but such remedy will flow from the nature of the violation rather than from a policy of den& zcrtificatisn and the ben-fit? of a bargaining order ?-c--*ait based on a presumption that the bargaining representative will not discharge its statutory responsibilities and live up to the obligation the statute imposes upon it. BELL & HOWELL COMPANY 423 employment, we believe that responsibility is best discharged by an administration of the Act which addresses the issue of invidious discrimination when and where it becomes relevant in the exercise of the normal functions of this Agency. We are persuaded that inquiry into the Union's alleged discriminatory practices is not relevant here, and we believe a bargaining order is an appropriate remedy for Respondent's violation of Section 8(a)(5). Our conclusion that the issue of whether or not a labor organization practices invidious discrimination is not appropriately raised in this case does not run afoul of the due process clause of the fifth amend- ment by denying Respondent an opportunity to present this issue in a proper proceeding. For, as we indicated in Handy Andy, these issues may be raised by filing a charge alleging that the union has breached its duty of fair representation in violation of Section 8(b)(I)(A) of the Act, or is refusing to bargain within the meaning of Section 8(d) and 8(b)(3). It is undisputed that no duty of fair representation arises until the union actually repre- sents employees in a specific bargaining unit. Consequently, such issues are prematurely raised in a representation proceeding or in a proceeding, such as this, where the employer refuses to bargain in order to test the underlying certification. However, as soon as the union and the employer enter into a bargain- ing relationship and the union begins to represent the unit employees, it becomes subject to the duty of fair representation and, as we discussed in Handy Andy, that duty affords protection to unit employees from any discriminatory practices of their bargaining representative. Proceedings under Section 8 0 ) are also preferable for resolution of issues involving invidious discrimi- nation, as such proceedings directly focus upon discrimination affecting unit employees and afford due process protection to the charged labor organiza- tion. First, the charging party, whether it be an employer, an employee, or some other person, must come forward with prima facie evidence of discrimi- nation in the bargaining unit to warrant issuance of a complaint. Secondly, both the 6-month limitations period of Section 100) of the Act and the provisions of the Administrative Procedure Act apply to such proceedings. Furthermore, unfair labor practice proceedings are adversary in nature and subject to judicial review. Finally, an 8@) proceeding permits a remedy tailored to fit the violations found, including - - 20 lndependenr Meral Workers Unron, Local No. I (Hughes Tool Compa- ny), 147 NLRB 1573 (1964). 2' h a 1 NO. 106, Glass Borrle Blowers Associalion, AFL-CIO (Owem- :.';hi, Incj, 2 10 NLRB 943 (1974), znfd. 520 F.?d 693 (C.A. o, 1975. 22 Member Murphy notes that although the proposed Equal Rights Amendment to the Constitution, which she vigorously supports. has not yet been ratified the national labor policy clearly forbids sex discrimination as a cease-and-desist order, affirmative conduct, and/or, if necessary, revocation of the labor organi- zation's certification.20 This method appears to us to be a far more appropriate means of remedying unlawful discrimination. Inasmuch as we are not constitutionally required to consider claims of invidious discrimination in pro- ceedings such as the instant case, we are not called upon to determine whether or not sex discrimination is constitutionally prohibited to the same extent as discrimination on the basis of race. We conclude, however, as we have in the past, that the duty of fair representation includes the duty not to discriminate on the basis of sex.21 Accordingly, we shall treat claims of sex discrimination in the same manner as any other allegation of invidious discrimination.22 On the basis of the foregoing, we hereby reaffirm our original conclusions of law and Order. ORDER Pursuant to Section lqc) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby reaffirms its original Deci- sion and Order in this proceeding and orders that the Respondent, Bell & Howell Company, Lincolnwood, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Board's original Order (220 NLRB 88 1). MEMBER WALTHER, concurring: I agree with my colleagues that this Board is not constitutionally required to consider claims of invidious discrimination by labor organizations in its 8(a)(5) certification test/summary judgment proceed- ings. Accordingly, I concur in their conclusion that the General Counsel's motion for summary judgment should be granted in this case. Respondent contends that the Union here engages in invidious discrimination by virtue of the fact that (1) it has no women members, officers, or business representatives; (2) it maintains benefit plans which discriminate against women; and (3) it deprives women of opportunities for employment as station- ary engineers in the Chicago, Illinois, area. To the extent that these claims are based upon the statutory duty of fair representation, 1 agree with my col- leagues that not only are they premature in an 8(a)(5) certification test/summary judgment proceeding where the Union by definitions has not yet been afforded an opportunity to represent the employees well as race discrimination in the workplace. See Title V1, supra; Equal Pay Act of 1963, 73 Stat. 56, 29 U.S.C. 206(d); Executive Order 11246, as amended by Executive Order 11375 (1967): Age Discrimination in Emplojmc;:; Act of 1967; and DeyY:tmr.: of Labor Ckls; K.;. .: (:?7C), ss revised April 2, 1972. Of course, the National labor Relations Act is also part of the national labor policy and it, too, forbias sex discrimination. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at all, but also that such claims are more appropriate- ly addressed in 8(b) proceedings. See my concurring opinion in Handy Andy, Inc., 228 NLRB 447 (1977). As I stated in Handy An+, however, the proviso to Section 8(b)(l)(A) requires affording different treat- ment to assertions that a union discriminates in its membership policies. Such a claim has been raised here based on sex. In most certification test/summary judgment pro- ceedings, I would not entertain defenses based upon membership discrimination. As explained in Handy Andy, I would consider such issues at the very outset of the representation proceeding, prior to the direction of an election. Having been afforded an opportunity to litigate this issue in the representation proceeding, our normal rules with respect to relitiga- tion would preclude respondents from raising it again at the summary judgment stage. The instant case, of course, has not been processed in accordance with the procedures set forth in Handy Andy. Had such procedures been utilized, however, I still would have found Respondent's assertions to be unsupported in the record. As I stated in Handy Andy, claims of membership discrimination must be supported by evidence contained in a union's constitution, bylaws, or other written statement of policy indicating that the union restricts access to membership on the basis of race, alienage, national origin, or sex. Since no such documentary evidence has ,been presented either here or to the Regional Director, I do not view Respondent's assertions as a bar to the granting of summary judgment. For one foregoing reasons, I agree that General Counsel's motion for summary judgment should be granted. l3 Respondent claims that one result of the Union's discriminatory practices is to exclude women from employment as stationary engineers. As a consequence, there would be no member of the bargaining unit to seek MEMBER JENKINS, dissenting: The effect of the Supplemental Decision and Order in this case is to hold that the due process clause of the fifth amendment does not preclude the Board from certifying as statutory bargaining representative a Union which discriminates against women. Gov- ernment sanction of invidious discrimination based on sex stands on no better footing than discrimina- tion based on race or national origin. Therefore, for the reasons set forth in my dissenting opinion in Handy Andy, Inc., 228 NLRB 447 (1977), 1 disagree with my colleagues' upholding the validity of the Union's certification in this case without consider- ation of the claim that it engages in sex discrimina- tion in its representation of employees. As in Handy Andy, supra, my colleagues contend, among other things, that certification of a discrimi- nating union, or issuance of a bargaining order, does not constitute prohibited Government action and that other remedies are available under both the National Labor Relations Act and other legislation to combat the Union's discriminatory practices. But, as I pointed out in Handy Andy, the Government invalidly participates whenever it sanctions, assists, or supports private discrimination. Certification of a union as the exclusive statutory bargaining represen- tative "confers substantial benefits," as my col- leagues acknowledged in Handy Andy, and endows the union with public rather than private rights. As I stated in Handy Andy, "Certification is thus an integral part of the representation function . . . and is patently direct participation and assistance by a Government agency. . . in the union's discriminato- ry representation." The availability of other remedies does not legitimize this unconstitutional conduct. The Constitution does not permit an arm of the Government to participate in invidious discrimina- tion, against women or any other persons, until other remedies come into play.23 enforcement of the Union's "statutory obligation," upon which my colleagues rely as a satisfactory substitute for refusal to certify, "to represent aU employees in the unit fairly."