B Brown Associates, Inc

National Labor Relations Board - Board Decisions

Jun 16, 1976

224 N.L.R.B. 929 (N.L.R.B. 1976)

B BROWN ASSOCIATES 929
B Brown Associates , Inc and New York Printing
Pressmen & Offset Workers Union No 51, affiliat-
ed with the International Printing Pressmen and As-
sistants Union of North America, AFL-CIO Cases
2-CA-13143 and 2-CA-13249
June 16, 1976
DECISION AND ORDER
BY MEMBERS FANNING JENKINS AND PENELLO
On June 30, 1975, Administrative Law Judge Stan-
ley N Ohlbaum issued the attached Decision in this
proceeding Thereafter, the Respondent and the
Charging Party filed exceptions and supporting
briefs, and the General Counsel filed a brief in sup-
port of the Administrative Law Judge's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, B Brown Associates,
Inc, New York, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
said recommended Order
i We agree that the Respondent violated Sec 8(a)(5) of the Act We do
not find it necessary to pursue the Administrative Law Judge down every
twist and turn of the path that at last led him to that conclusion It is
enough that the Respondent failed to establish that the Union discriminates
sexually or even to allege so much as one instance where the Union depart
ed from any obligation to employees in units it represents
DECISION
I PRELIMINARY STATEMENT, ISSUES
OHLBAUM, STANLEY N, Administrative Law Judge This
consolidated proceeding I under the National Labor Rela-
tions Act, as amended, 29 U S C § 151, et seq (Act), was
1 The consolidated complaint dated August 9 1974 grows out of a
charge filed by the above Union on October 30 1973 in Case 2-CA-13143
and a charge filed by the Union on March 13 1974 in Case 2-CA-13249
heard by me in New York, New York, on February 25-26,
1975, with all parties participating throughout by counsel,
who were afforded full opportunity to present evidence
and arguments, and to file briefs Subsequent to the hear-
ing, time for that purpose having been several times ex-
tended upon application of counsel, final briefs, served on
May 8, were received on May 14, 1975 Record and briefs
have been carefully considered
The consolidated complaint alleges and Respondent de-
nies that by refusing to bargain with New York Printing
Pressmen & Offset Workers Union No 51, affiliated with
the International Printing Pressmen and Assistants Union
of North America, AFL-CIO (Union), as the Board-certi
fled collective-bargaining representative of an appropriate
unit of Respondent's employees,2 and by unilaterally
granting wage increases and promising further betterments
to unit employees without bargaining with the Union, Re-
spondent has been violating Section 8(a)(5) and (1) of the
Act Respondent admits that it continues to refuse to rec-
ognize or bargain with the Union, and that it has unilater-
ally granted wage increases and has promised other better-
ments as alleged in the complaint Respondent, however,
attempts to justify these actions by asserting that the bar-
gaining unit 3 is inappropriate, that the Board did not act
properly in denying Respondent's request for review of the
Regional Director's Decision and Direction of Election,
that the Union is not properly certified as the bargaining
representative of the unit employees, that the Union (as
well as its parent national organization) "is not entitled to
a certification or enforcement of a bargaining order be
cause of their engagement in rank and invidious discrimi-
nation within the meaning of the Equal Employment Op-
portunity Act, the Civil Rights Act of 1964 and other
statutes of the United States", and that the Union is failing
fully and fairly to represent "all members of bargaining
units for which it is certified or recognized "
Upon the entire record and my observation of the testi-
monial demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
II JURISDICTION
At all material times, Respondent B Brown Associates,
Inc, has been and is a New York corporation engaged in
printing, sale, and distribution of printed materials and re-
lated products at and from its plant and place of business
at 305 East 45th Street, in the Borough of Manhattan, City
and State of New York, the facility here involved, where
during the representative year immediately preceding is-
suance of the complaint it performed services valued in
excess of $50,000 for printing and binding financial publi-
2 I e All full time and regular part time pressmen and lithographic
printing employees including letter and offset pressmen cameramen plate
makers strippers and artists employees of the Employer employed at its
New York New York plant exclusive of all other employees office clerical
employees bindery employees mailers warehouse employees shipping and
receiving employees addressograph employees typists maintenance em
ployees reproduction typists list maintenance employees bookkeepers file
clerks expediters (inside sales persons) outside sales persons guards
watchmen and all supervisors as defined in Section 2(11) of the Act
3 See fn 2 supra
224 NLRB No 134
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cations and direct mail advertising for New York corpora-
tions directly engaged in interstate commerce
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that at all of
those times the Charging Party Union has been and is a
labor organization within the meaning of Section 2(5) of
the Act
III ALLEGED UNFAIR LABOR PRACTICES
A Factual Background
1 Prior proceedings (representation case and election of
union as bargaining representative)
Alleging a demand on February 8, 1973, upon the Em-
ployer (Respondent herein) for recognition as bargaining
representative of an appropriate unit of its offset printing
employees, and refusal by the Employer to grant such rec-
ognition, the Union on the same date filed with the Board
a petition for an election, in accordance with the provisions
of the Act, to determine the question of representation
(Board Case 2-RC-16054) After hearings held on Febru-
ary 23, March 1 and 5, 1973, involving, among other
things, the vacating of a subpena issued by the Employer
to the former Chairman of the Board, the Board's Regional
Director for Region 2 on April 13, 1973, issued a Decision
and Direction of Election directing a statutory election in
the requested unit, which he found to be appropriate for
bargaining purposes On April 23, the Employer filed with
the Board a request for review of the Regional Director s
April 13 Decision and Direction of Election, on May 14,
1973, the Employer's request was denied as raising no sub-
stantial issue warranting review
A statutory election was accordingly held on May 16,
1973, under auspices of the Regional Director for Region
2, resulting in selection of the Union as the statutory col-
lective-bargaining agent of the employees in the foregoing
appropriate unit On May 24, 1973, the Union was official-
ly so certified by the Regional Director
On September 18, 1973, the Union, now as Board-certi-
fled bargaining representative of the unit employees, again
requested recognition and bargaining by the Employer,
who again refused to recognize or bargain with it On Octo-
ber 30, 1973, the Union filed the original unfair labor prac-
tices charge (Case 2-CA-13143) resulting in issuance of the
complaint herein In December 1973 and January 1974,
Respondent (Employer) unilaterally-without consulting
or bargaining with the Union-placed into effect wage in-
creases to unit employees and also unilaterally promised
unit employees additional economic betterments These
unilateral actions of Respondent resulted in the filing of
further unfair labor practices charges against it (Case 2-
CA-13249) by the Union on March 13, 1974, which are
also here in the instant case by consolidation into the con
solidated complaint issued by the Regional Director on
August 9, 1974 Respondent's answer filed on August 15,
1974, to this consolidated complaint raises, seemingly for
4 Respondents denial of the latter allegation of the complaint was with
drawn at the hearing
the first time, a new alleged basis for refusing to recognize
or bargain with the Union, namely, by affirmative defense,
that the Union (with its parent national union) is "not enti
tied to a certification or enforcement of a bargaining order
because of their engagement in rank and invidious discrim-
ination within the meaning of the Equal Opportunity Act,
the Civil Rights Act of 1964 and other statutes of the Unit-
ed States " In response to an August 19 demand by the
General Counsel for a more definite statement as to this
affirmative defense, Respondent almost 5 months later, on
January 13, 1975, served a "more definite statement" alleg-
ing that the Union "has and continues to discriminate
against individuals on arbitrary and invidious grounds, to
wit, race and sex 5 in training, employment and represen-
tation," in violation of Title VII of the Civil Rights Act of
1964 and other federal and state laws prohibiting discrim-
ination," since the Union's "inception "
Meanwhile, on September 23, 1974, Respondent had
filed with the Board a motion for reconsideration of the
Board's May 14, 1973, decision denying Respondents re-
quest for review of the Regional Director's April 13, 1973,
decision and Direction of Election-decisions preceding
the May 16, 1973, statutory election-upon the ground that
the Board's decision had not been considered by a lawful
quorum of the Board, and therefore to void the election
and vacate the certification In support of this application
Respondent, conceding that it was refusing to recognize or
bargain with the Union notwithstanding its certification,
called attention to the pending unfair labor practices com-
plaint (i e , in the instant case) and its affirmative defense
therein alleging `rank and invidious discrimination" by the
Union as to race and sex as justification for Respondent's
refusal to engage in collective bargaining, and, warning
that litigation of the latter issue would be time consuming
and expensive," Respondent took the position that such
litigation could be avoided as ` academic" if the Board
would void the election and vacate the certification upon
the ground that required quorum voting procedures had
not been observed by the Board in its May 14, 1973, denial
of Respondents request to review the Regional Director's
April 13, 1973, decision and Direction of Election antedat-
ing the May 16, 1973, statutory election On December 16,
1974, the Board granted Respondent's request for recon-
sideration, adhered to its original determination, and de
need Respondents application to void the election and va-
cate the certification since ` it does not raise substantial
issues warranting review "
On February 18, 1975-1 week before the hearing
opened in the instant case-Respondent moved to amend
its answer to add as a second affirmative defense to its
admitted continuing refusal to recognize or bargain with
the Union that the latter was failing in `its duty to fully
and fairly represent all members of bargaining units for
which it is certified or recognized " 6 7
s As shown below at the hearing Respondent withdrew the racial and
nonsex related discrimination allegation leaving only sexual discrimination
in this affirmative defense
6 Respondents motion to amend its answer by adding this additional
affirmative defense was granted at the hearing The defense is discussed
infra III C4
7 The foregoing facts are conceded or established by uncontroverted do
cumentary evidence For purposes of this decision it is unnecessary to deal
B BROWN ASSOCIATES 931
2 Evidence at hearing
At the hearing, certain documentary evidence-some
proffered subject to ruling on admissibility-and some tes
timonial evidence were adduced Aside from the formal
papers in this and the underlying representation case, doc-
uments received at the hearing consisted of the Union's
constitution, bylaws and current industry (i e , multiem-
ployer) contract, the Union's apprenticeship program and
registrations thereunder, as well as correspondence relating
thereto, and certain labor force statistics on minorities and
females Additionally, an all-party stipulation was re-
ceived
In material substance, these will now be described It
should be kept in mind that at the hearing Respondent
deleted from its affirmative defense any allegation that the
Union has or is engaged in any discrimination based upon
race or national origin, leaving only a discrimination alle-
gation based upon sex
The Union's constitution and bylaws in no way restrict
membership or apprenticeship, or in any other respect, to
males The Union's here subsisting industrial contract
(March 4, 1974-March 3, 1975) provides
The League [i e, Printers League Section Printing
Industries of Metropolitan New York, Inc a mul-
tiemployer organization] and the Union pledge, that
they shall continue to practice no discrimination in
employment in regard to race, creed, color, national
origin or sex
The parties to the collective bargaining agreement
agree to continue their policy of no discrimination
against any employee because of race, creed, color,
sex or national origin, with respect to wages, hours,
advancement, selection for apprenticeship openings,
or other conditions of employment
The terms "journeymen," "pressmen, brakemen
pressmen," "tension men pressmen," and 'camera-
men," as used in the collective bargaining agreement
are meant only to indicate the classification or status
of employees, and are not related to the sex of em
ployees Any other use of the masculine gender in the
collective bargaining agreement shall be understood to
include the feminine gender as well 8
As has been indicated in a previous footnote, with re
gard to the Union's apprenticeship program, its subsisting
with or review certain correspondence carried on b) Respondents counsel
with the Regional Director the Board s Executive Secretary and the Chief
Administrative Law Judge
8 Prior to this wording revision effective March 4 1974 although this
particular provision had read in the 1971-74 contract The League and the
Union pledge that they shall continue to practice no discrimination in em
ployment in regard to race creed color or national origin the very same
1971-74 contract had expressly stipulated as part of its Rules Governing
Apprentices that The League and the Union pledge that there shall be no
discrimination in the employment of apprentices Apprentices shall be se
lected on the basis of qualifications and aptitudes in accordance with prof e
dares established by the parties and without regard to race creed color sex
or national origin
and 1971-74 industry collective agreement (Resp Exh 1,
p 28) further stipulates
The League and the Union pledge that there shall be
no discrimination in the employment of apprentices
Apprentices shall be selected on the basis of qualifica-
tions and aptitudes in accordance with procedures es-
tablished by the parties, and without regard to race,
creed, color, sex or national origin
The apprenticeship program itself (id, pp 28-32, (C P
Exh la)) contains no requirement or indication of sex-
related qualification or distinction of any kind The
Union's signed adherence (August 22, 1972) to similar New
York State Labor Department "Standards for Rating Ap-
prentice Training Candidates" likewise attests that "The
recruitment, selection, employment, and training of ap-
prentices during their apprenticeship shall be without dis-
crimination because of race, color, religion, natural [sic]
origin or sex", as also does the Union s like certification in
its revised apprentice training program registration ("Ap-
prentices shall be hired without any direct or indirect limi-
tation, specification or discrimination as to race, creed, na-
tional origin, or sex") 9 On January 8, 1973, the Union was
informed by the Area Supervisor of the Bureau of Appren
ticeship and Training Manpower Administration, U S De
partment of Labor, that (C P Exh 1C)
Your Registered Apprenticeship Program is in Com-
pliance with the Federal Law Title 29 CFR Part 30
and the New York State Equal Opportunity in Ap-
prenticeship Training
It is stipulated that the Union s apprenticeship program is
neither publicized through news media or employment
agencies, nor actively promoted by the Union by seeking
out or encouraging applicants through its referral service,
joint apprenticeship committee, or New York School of
Printing Trades During the past 3 years, 13 persons have
applied for and all have been admitted into the apprentice
ship program, although all are males, there is neither evi-
dence nor claim that any female has been rejected or ap-
plied
Respondent rested its proof substantially upon the fore-
going documentation (including the stipulation, G C Exh
5 after calling as its witness Union Business Representa-
tive Seide and eliciting from him the testimony that al-
though the Union numbers around 2,000 active members,
that number includes only about 6 females Called as a
rebuttal witness, Seide also testified that of the 18 employ
ees in Respondents bargaining unit here 2 are females
Respondent concedes in the stipulation to which it is a
party (G C Exh 5, p 2, IV,2) that it has no evidence of
any specific acts of unlawful discrimination by Local 51
Union Representative Seide has been in the printing in
While it is recognized that subscription to such a pledge does not in and
of itself insure or establish that it has been or is being honored and that-as
pointed out by the New York State Administrator of Apprentice Training
(in his March 9 1973 correspondence relating to revised filings under the
Union s apprentice training program C P Exh lb)-State authorities reg
istration of the program does not preclude others from filing complaints
with the New York State Division of Human Rights alleging that your
selection standards are discriminatory in content or in actual application
the hard fact is that not a shred of evidence has been presented here that
any such complaint or claim has at any time been filed or asserted
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dustry for 28 years, 24 (since 1951) as member of Local 51
His uncontroverted, credited testimony establishes the fol-
lowing facts, which are hereby found Local 51 (Charging
Party Union here) has an industry multiemployer collective
agreement with the aforementioned Printers League Sec-
tion of the Printing Industries of Metropolitan New York,
Inc, covering approximately 150 employers, and separate
collective agreements with about 150 employers, and sepa-
rate collective agreements with about 150 other employers
Both of these employer categories in practice-but not by
contractual requirement-draw employees from the Local
51 hiring hall and, in the case of Printers League members,
also from a Printers League referral service, with the em
ployer deciding whether or not to hire any prospective em-
ployee Thus, the employer is at liberty to hire any person
as an employee, whether or not referred by the Local 51
hiring hall, and whether or not a Local 51 or other union
member or nonmember Local 51 members are also free to
obtain employment anywhere, including with an employer
who does not have a collective agreement with Local 51 10
A union security provision in the Union's industry agree-
ment requires nonunion employees hired into shops cov-
ered by the agreement to join and maintain union member
ship, as authorized by applicable statutory enactments The
Local 51 hiring hall is open to all-union members and
nonmembers-alike, and operates with a conspicuously
posted work referral list containing names of nonmembers
as well as union members Job referrals are made by se-
niority on the job referral (out-of-work) list without regard
to union membership In connection with job referrals, no
inquiry is made at the hiring hall as to qualifications (other
than familiarity with particular machinery which may be
called for), it is the employer alone (in person or through
his foreman) who decides qualification The testimony of
Seide, a credible witness, is uncontradicted that at no time
has the Union denied to a female membership in the
Union or as a participant in its apprenticeship program, or
in job referrals The Union has female members, although
these are, for reasons not known, very few, as indicated
above, 2 out of 18 unit members in Respondent's shop are
female In short, as to the Union's hiring hall, anybody
who walks in has equal access thereto and may add his or
her name to the out-of-work job referral list there, and job
referrals are made in the order of the names thus listed
thereon When a nonunion employee is hired by an em-
ployer, he or she is visited by the Union's business repre-
sentative and enlisted into membership, regardless of
whether he or she obtained employment through the union
hiring hall Not a shred of evidence has been presented
here to establish or indicate that the union hiring hall is not
lawful or not operated lawfully or that it is operated in a
discriminatory manner in any respect involving sex dis-
crimination
Seide's uncontradicted, credited testimony further estab-
lishes that at least since his connection with the Union in
1951, no applicant for membership, male or female, has
been denied membership into the Union, that no person,
10 Even according to Seide in a nonunion shop notwithstanding union
constitutional provision at least in part to the contrary but this situation is
not germane to issues here
male or female, has ever been denied entrance into the
Union s apprenticeship program, that no person's dis
charge from employment has at any time been requested
by the Union for any reason other than nonpayment of
union dues in accordance with a contractual union security
requirement, and that at no time has any female member
of the Union filed any grievance
Finally, General Counsel proffered various statistical
studies profiling the nature of the labor force vis a vis mi-
norities and females These were objected to by the Charg-
ing Party (Union) as irrelevant " At the point in the hear-
ing when this material was proffered, Respondent had not
yet withdrawn that portion of its affirmative defense alleg-
ing racially or other non-sex-related discriminatory practic
es on the part of the Union In view of Respondent's subse-
quent withdrawal of that portion of its defense, the
Charging Party s objection to so much of these statistics
(G C Exhs 4a through 4d) as are concerned with the racial
(or otherwise non-sex-related) labor force profile is sus-
tained, objection to the remainder, dealing with the sexual
labor force profile, is hereby overruled As to the latter,
Respondent's objection to so much thereof as are concerned
with data outside of the metropolitan New York City area
(i e, "SMSA" or "Standard" Metropolitan Statistical Area
of New York City) is sustained Accordingly, of the labor
force statistics here proffered, only those relating to fe-
males in the New York City SMSA-i e, portions of G C
Exhs 4a and 4b-are received Since G C Exhs 4c and 4d
deal with ethnic groups (they are also limited to data from
reports of employers with 100 or more employees), they are
rejected in view of the elimination of that issue from this
case
These statistics show that, as of 1970, although the New
York City SMSA 12 consisted of 53 0 percent or a majority
of females, as percent of total force there females constitut-
ed only 40 4 percent The figures further show that out of
total (i e, 100 percent) unemployment there, females con-
stituted less than half, or 44 8 percent 13 The figures also
show that, with 40 4 percent (39 3 percent adjusted 14 ) of
11 In order to avoid a possibly lengthy interruption of the hearing to
permit the question to be briefed the Charging Party agreed that if its
objection to the proffered material should be overruled the hearing need not
be reopened
12 1 e all five counties or boroughs comprising New York City plus
Westchester and Rockland counties The N Y C SMSA is thus different for
example from the ICC metropolitan New York City delivery area and it
excludes Newark and other nearby New Jersey suburban work force com
muting communities heavily supplying New York City labor as well as the
immediately continguous work force communities of Nassau and Suffolk on
that portion of the Long Island (which includes Brooklyn and Queens
County in New York City) not within the political boundaries of New York
City It also excludes other nearby counties of New York State It likewise
differs from the geographical scope of other labor force statistics in evidence
here (e g G C Exh 4b including Nassau and Suffolk counties) showing a
combined adjusted lower percentage of female labor force (39 3 percent
instead of 40 4 percent) These and like matters are totally unexplained here
13 Of the total of experienced unemployed females by occupational sate
gories in N Y C SMSA the percentage distributions were as follows pro
fessional technical and managerial 11 8 percent sales 5 3 percent
clerical 30 0 percent crafts 2 0 percent operatives 32 7 percent
laborers (except farm) 0 7 percent service (except private household)
9 0 percent other 8 6 percent No comparable figures have been supplied
for males as to the foregoing nor in relation to union membership female
or male
14 See fn 12 supra
B BROWN ASSOCIATES 933
females in the total N Y C SMSA labor force (G C Exh
4a, p 12, and G C Exh 4b), females constituted a total of
40 2 percent (39 0 percent adjusted 14) of the total employ-
ment in that SMSA (id, p 28) 15 Utilizing the occupational
category of "craftsmen, foremen and kindred," whatever
that means, as adopted by the authors of these "statistics"
and without definition or breakdown,15 the "adjusted" sta-
tistics 16 show females as 5 1 percent of the total employ-
ment in that category 17
As shown above, it is established that of the 18 employ-
ees in the bargaining unit here 2, or 11 1 percent,' are
females, and Respondent concedes "no evidence of any
specific acts of unlawful discrimination by Local 51 '
B Respondents Contentions
1 Inappropriateness of collective-bargaining unit
Respondent contends that the bargaining unit here is
inappropriate for collective-bargaining purposes Since this
issue has already been determined by the Board adversely
to Respondent in its denial of review of Regional Director
Danielson's well reasoned decision of April 13, 1973, based
upon the thorough hearing record compiled by Hearing
Officer Howard Shapiro, the Board's determination may
not here be disturbed
2 Board action vis a-vis Regional Director's Decision and
Direction of Election
Respondent further contends that the Board's May 14,
1973, action and December 16, 1974, reconsidered action
in denying Respondent's request for review of the Regional
Director's April 13, 1973, Decision and Direction of Elec-
tion were for various reasons, including an alleged absence
of statutory quorum, invalid or infected with impropriety
15 Breakdown of female employment in selected occupational types by
percent of total employment in the N Y C SMSA shows as follows profes
sional technical and kindred 41 2 percent managers and administra
tors (except farm) 18 2 percent clerical and kindred 68 3 percent
sales 31 5 percent craftsmen foremen and kindred 5 5 percent
operatives 35 4 percent service (except private household) 37 7 per
cent laborers 6 1 percent (G C Exh 4a p 36) Although the categories
are undefined the rationality of at least some of the combinations of sub
categories (e g craftsmen with foremen ) at any rate in terms of con
ventional industrial relations concepts and usages is questionable
16 I e N Y C SMSA plus Nassau and Suffolk counties See fn 12 supra
17 While on the subject of statistics it may be of interest to note-without
in any way relying thereon or affecting this proceeding or its outcome-that
statistics issued by the Bureau of Labor Statistics U S Department of La
bor show that the number of females employed in printing and pub
lishmg increased from 270 000 in 1964 to 366 000 in 1973 for an increase
from 29 percent to 34 percent of the percentage of the total employees
employed in that industry and that the number of female printing press
operators increased from 4 848 in 1960 to 13 374 in 1970 for an increase in
that decade from 5 8 percent to 8 5 percent of the total employees employed
in that trade or craft 97 Monthly Labor Review 6 and 16 (May 1974)
15 I e more than double the percentage (5 5 percent) in the unadjusted
N Y C SMSA or in the adjusted NYC SMSA (5 1 percent) for the
craftsmen foremen and kindred category There is no showing as to how
many if any of these belong to the Union although under the union
security provision in the Union s industrial agreement they would be re
quired to join and maintain membership if the Union were selected as bar
gaining representative by a majority (male or female) of employees in the
bargaining unit and if the employer acceded to this provision
and should therefore, together with the election itself, be
voided, relying basically upon KFC National Management
Corp v N L R B 497 F 2d 298 (C A 2, 1974) This con-
tention is likewise not for consideration here, since the
Board has also, by its December 16, 1974, order described
above, already determined the matter adversely to Respon-
dent As in the case of Respondent's first contention, the
Board's determination may not-as Respondent recogniz-
es, in reasserting these contentions merely for preservation
of its record-be altered here
3 Respondents first affirmative defense alleged
invidiously discriminatory practices by the Union against
females, as a defense to Respondent's
collective-bargaining obligation
Respondent's first affirmative defense-after, as shown
above, Respondent at the hearing dropped the portion al-
leging rank and invidious racial (and other non-sex-relat-
ed) discrimination by the Union-as now limited is, that
Respondent is relieved of its statutory bargaining obliga-
tion with the Union as the Board-certified bargaining rep-
resentative of its employees because the Union allegedly
engages in rank and invidiously discriminatory practices
against females
A threshold question in connection with this contention
is that of its timeliness, in view of Bekins Moving & Storage
Co of Florida Inc, 211 NLRB 138 (1974) (representation
case) and subsequent representation cases 19 In Bekins, the
Board announced that it would not entertain the issue of
alleged invidiously discriminatory practices (in that case,
allegedly against females and Spanish-speaking and sur
named persons) by a Union at the pre-election stage of a
representation proceeding, but only at the pre certification
stage in the event the Union won the election 20 It is to be
noted that in Bekins only two members (Chairman Miller
and Member Jenkins) of the full five participating in that
decision, or less than a majority, agreed that sex discrimi-
nation by a union seeking certification should be inquired
into at the precertification stage, although three members
of the Board (Chairman Miller and Members Jenkins and
Kennedy) agreed that the postelection, pre-certification
stage was the proper time to determine whether a union
was engaging in invidious discrimination, so that if estab-
lished its certification could be withheld,21 all five agreed
that a union's invidious discrimination based upon "race,
alienage, or national origin' should disqualify it at some
point from enjoying its certification, Member Kennedy's
concurrence-in effect a partial dissent on two matters,
namely (1) the "sex discrimination" issue and (2) the "fair
representation' issue-resulted in (1) no Board majority
favoring precertification exploration of the "sex discrimi-
19 E g S H Kress & Company 212 NLRB 132 (1974) Petrie Stores Corpo
ration 212 NLRB 130 (1974) Defender Security & Investigation Services
Inc 212 NLRB 407 (1974) Bell & Howell Company 213 NLRB 407 (1974)
Grants Furniture Plaza Inc of West Palm Beach Fla 213 NLRB 410 (1974)
Grants Furniture Plaza Inc of Stuart Fla 213 NLRB 413 (1974)
20 The Board however expressly reserved the question of what degree or
form of invidious discrimination would be sufficient to warrant disqualifica
tion of a union from receiving or retaining certification Id p 139 fn 8
21 Dissenting Members Fanning and Penello favored postponing explora
tion of this issue until an unfair labor practices proceeding
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation" issue, but a majority of three members (i e, con-
curring Member Kennedy and dissenting Members Fan-
ning and Penello) voting against precertification explora-
tion of that issue, and (2) no Board majority favoring
precertification exploration of the "fair representation' is-
sue, but a majority of three members (i e, concurring
Member Kennedy and dissenting Members Fanning and
Penello) voting to explore that matter after certification
based upon actual conduct of the union subsequent to cer-
tification Figure 1 shows the Board s voting pattern in Be
kips The same voting pattern as in Bekins (Fig 1) appears,
explicitly on the "sex discrimination" and "fair representa-
tion" issues, in Bell & Howell Company, 213 NLRB 407
(1974), where the concurring opinion of Member Kennedy
added to the opinion of Members Fanning and Penello,
thus constituting a majority, in a representation case where
a certification was issued to a union having 0 female mem-
bers in a membership exceeding 1,000, stated that he would
permit the "sex discrimination" question to be raised after
certification, in an unfair labor practices case, in the con-
text of a possible breach of the duty of fair representation,
under Hughes Tool (147 NLRB 1573 (1964)) Majority
Members Fanning and Penello stated (at 408), "We believe
that disqualification of the Petitioner [Union] because it
allegedly discriminates on the basis of sex is neither re-
quired by the Constitution nor permitted by the Act "
The decision in Mansion House II,22 by the 8th Circuit
Court of Appeals in 1973, prior to Bekins, upholding the
propriety of alleging invidious discrimination by a union in
its membership policy, as a defense to an 8(a)(5) refusal to
bargain complaint against an employer, is similarly limited
to racial discrimination as a bar to statutory certification of
a union as bargaining agent
It is in this context that the instant case arises and that
Respondent's first affirmative defense, including its timeli-
ness, must be considered Although Respondent first raised
its `invidious discrimination" contention in its answer
herein, and not at the precertification stage as required by
Bekins, the Bekins rule had not yet been announced by the
Board when the Union here was certified 23 Thus, to apply
Bekins here would be to foreclose Respondent from a hear-
ing on this issue, unless Respondent were held to the re-
quirement that it should have raised that contention prior
22 N L R B v Mansion House Center Management Corporation 473 F 2d
471 (C A 8 1973) This case referred to herein as Mansion House II in
volves the 8(a)(5) issue in Mansion House Center Management Corporation
190 NLRB 437 ( 1971) as to which the Eighth Circuit Court of Appeals
retained jurisdiction in Mansion House I (i e N L R B v Mansion House
Center Management Corporation 466 F 2d 1283 ( 1972)) pending further
briefing
23 The Union was certified on May 24 1973 Bekins was decided on June
7 1974 the complaint herein is dated August 9 1974 and Respondents
answer was filed on August 15 1974
Figure 1 The Board's Vot ing Pattern in Bekins /
Consider at Pre-Election
Stage of "R " Case9
Consider at Post-Election and
Precertification Stage of
"R" Case
Consider at Post-Certification
Stage , in "ULP" Case9
R A NO S FR R A NO S FR R A NO S FR
Chairman Miller n n n n n y y y y y at n b / n b/ n b / n b/ n ab/
Member Fanning n n n is in n is is is n y y y y y a/
Member Jenkins is is is in is y y y y y a/ is b / n h/ is b / n b/ n a,b/
Member Kennedy is is is in n y y y n n a/ is b/ n b/ is b / is b/ y a/
Member Penello n n n is is n is is is in y y y y y a/
b/
R Race , A Alienage , NO National Origin , S Sex , FR Fair Representation,
y yes , n no
As I read the opinions in Bekins , "fair representation " is used in two different senses there
Chairman Miller and Member Jenkins , favoring precertification exploration of that subject , speak of the
union's "capacity to fairly represent employees ," which seems to involve
the same issue as the invidious discrimination inquiry , concurring Member Kennedy , on the other hand,
clearly regards the "fair representation" issue as one of actual fair representation based upon the
union's postcertification conduct Dissenting Members Fanning and Penello
appear to use the expression "fair representation ' in the same sense as Member Kennedy
But cf order of December 13, 1974, in instant case "Contrary to the Union s contention, our
decision in Bekins does not preclude raising this affirmative defense in a subsequent complaint proceeding
alleging a refusal to bargain " (Chairman Miller and Members Jenkins and Kennedy ) Presumably this
was intended to cover cases such as the instant case , arising prior to Bekins , or others , where the
defense is raised to preserve the employer ' s position for ultimate adjudication involving , among other
things , consideration of the propriety of the Representation case hearing and determination of this
issue, or cases involving a claim of representation not based upon an election
B BROWN ASSOCIATES 935
to certification even though Bekins had not explicitly pro
nounced such a requirement-a position arguably unfair
since it could be said to saddle Respondent with the obliga-
tion of prediction of what the Board would do Although in
other contexts litigants must usually assume the risk of
eventual outcome of litigation, even as to novel questions
involving points of law not previously determined, never
theless in the instant context it would appear that Respon
dent should not under the circumstances be deprived of the
opportunity to litigate this question which it would have
had at the precertification stage had the Bekins rule been
announced at that time and alerted Respondent to the re-
quirement of timeliness in that regard And it would seem
that the Board was also so minded in denying the Charging
Party's motion for summary judgment raising the timeli-
ness issue under the Bekins rule,24 even though the Board
could have but did not choose in this particular case to
relegate Respondent to a motion or proceeding to revoke
the certification
We accordingly proceed to the substance of
Respondent's truncated first affirmative defense, namely,
that it was and is excused from the statutory collective-
bargaining obligation imposed by the Act, by reason of
what Respondent asserts has been and continues to be the
Union's rankly and invidiously discriminatory policies
against females
Since at least 1938 (American Tobacco Co, 9 NLRB 579
(1938)) the Board has adhered to the policy of not certify-
ing a union which pursues an avowed policy of racial dis-
crimination in membership It is, however, another matter
again to invite such an issue-specifically the issue of "sex
discrimination"-to be raised by employers in justification
of refusals to bargain collectively as required by the Act,
when no rectification of any alleged discrimination has
been sought by any employee or prospective employee be-
fore the Board or before any specialist agency expressly
entrusted by statute with the function and responsibility of
erasing discrimination, and that agency has itself raised no
voice against the union Speaking for the Supreme Court in
what appears to be the latest barometer of controlling legal
philosophy in this general problem area, Emporium Capwell
Co and N L R B v Western Addition Community Orgam
zation, 420 U S 50, 66, 67, 70-73 (1975), Mr Justice Mar
shall recently pointed out
it is far from clear that separate bargaining is
necessary to help eliminate discrimination Indeed, as
24 Thus in denying the Charging Party s September 9 1974 motion to
strike out Respondents first affirmative defense and for summary judg
ment the Board on December 13 1974 ruled that Respondents affirmative
defense alleging invidious discrimination by the Union [Note withdrawn
by Respondent at the instant hearing as to race (and other non sex related
matters) and limited to sex only] precluded summary judgment Although
the Boards December 13 1974 order stated that Contrary to the Union s
contention our decision in Bekins does not preclude raising this affirmative
defense in a subsequent complaint proceeding alleging a refusal to bargain
at the same time it expressly cautioned that we do not reach or decide
whether Respondent could raise such issue in the complaint proceeding if it
could have raised such issue in the underlying representation case but failed
to do so adding moreover that Chairman Miller concurs but only be
cause the representation case herein was concluded prior to the Board s
decision in Bekns supra setting forth the appropriate procedure for raising
issues of this type
the facts of this litigation demonstrate, the proposed
remedy might have just the opposite effect The collec
tive-bargaining agreement involved here prohibited
without qualification all manner of invidious discrimi-
nation and made any claimed violation a grievance
issue The grievance procedure is directed precisely at
determining whether discrimination has occurred
That orderly determination, if affirmative, could lead
to an arbitral award enforceable in court Nor is there
any reason to believe that the processing of grievances
is inherently limited to the correction of individual
cases of discrimination
Competing claims on the employer's ability to accom
modate each group's demands could only set
one group against the other even if it is not the
employer's intention to divide and overcome them
Having divided themselves, the minority employees
will not be in position to advance their cause unless it
be by recourse seriatim to economic coercion, which
can only have the effect of further dividing them along
racial or other lines
The policy of industrial self-determination as ex-
pressed in § 7 [of the National Labor Relations Act]
does not require fragmentation of the bargaining unit
along racial or other lines in order to consist with the
national labor policy against discrimination And in
the face of such fragmentation, whatever its effect on
discriminatory practices, the bargaining process that
the principle of exclusive representation is meant to
lubricate could not endure unhampered
* * * *
Questions arising under Title VII must be resolved by
the means that Congress provided for that purpose
* * * * *
Respondent objects that reliance on the remedies
provided by Title VII is inadequate effectively to se-
cure the rights conferred by Title VII There are in-
deed significant differences between proceedings initi-
ated under Title VII and an unfair labor practice
proceeding Congress chose to encourage voluntary
compliance with Title VII by emphasizing conciliatory
procedures before federal coercive powers could be
invoked Even then it did not provide the EEOC with
the power of direct enforcement, but made the federal
courts available to the agency or individual to secure
compliance with Title VII 25
25 In respects beyond those here noted by Mr Justice Marshall there is
no close parallelism between the Act and the Equal Opportunity Act of
1972 (EEOA) 86 Stat 103 42 U S C A Sec 2000e While Respondent seeks
to draw the EEOA and the procedures as well as standards of its adminis
trator the Equal Employment Oppurtumties Commission (EEOC) into and
astride the issues presented in the instant case the result of so doing as
recognized by Mr Justice Marshall in Emporium Capwell could hardly be
Continued
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[W]e are told that relief is typically available to the
party filing a charge with the NLRB in a significantly
shorter time, and with less risk, than obtains for one
filing a charge with the EEOC
Whatever its factual merit, this argument is properly
addressed to the Congress and not to this Court or the
NLRB
Furthermore, to permit wholesale litigation of such issues
by employers as "defenses' or "justifications" for failure to
bargain collectively in accordance with the statutory com-
mand would reduce the bargaining obligation to a sham-
bles by encouraging prolonged and redundant litigation of
issues which the Board is ill equipped, if not questionably
required, in the first instance to handle Collective bargain-
ing, a cornerstone policy of the Act, would be undermined,
impeded, delayed, frustrated, and rendered nugatory
through diversionary explorations by employers into union
practices-matters best left to employees to assert and pur-
sue, either before the Board or before the specialized gov-
ernmental agencies and courts charged in the first instance
with policing such matters The logical consequence of per-
mitting employers to justify refusals to bargain upon the
ground here asserted would be for practical purposes to
weaken collective bargaining to the point of destruction by
introducing an industrial numerus clausus concept, so to
speak, as a precondition to collective bargaining, under
which unions would be required to establish to the satisfac-
tion of employers that their membership corresponds sta-
tistically (according to a system acceptable to the employ-
er) to `related" percentages of population segments,
including females (who, incidentally, constitute a majority
other than to engender confusion to say nothing of inordinate delay into
unfair labor practices proceedings by befogging issues under the Act and
launching the Board on the high seas of procedures alien to it and seeming
ly inconsistent with for example the evidentiary (as well as basic policy)
requirements mandated for unfair labor practice proceedings by Sec 10(c)
of the Act It is difficult to know where to end once one begins conjuring
up the plethora of obfuscations which could arise were the EEOA mecha
nisms and procedures to be engrafted upon the Acts requirements for
example would it be a defense to unlawful interrogation under Sec 8(a)(1)
that the plant union allegedly practices discrimination? It would be point
less here to catalogue the numerous discrepancies between the statutory and
regulatory provisions to say nothing of the mechanisms and approaches of
the EEOC and the Board for example unlike that in the Act the EEOA
definition of employer is limited to one having fifteen or more employ
ees for each working day in each of twenty or more calendar weeks in the
current or preceding calendar year (EEOA 42 U S C A Sec 2000e [b])
This is cited as but a single example of the seeming miasma of difficulties as
well as administrative impracticability inherent in attempting to crudely
superimpose specifics (as distinguished from basic nationally declared poll
cies cf Carpenters Local Union No 22 [Graziano Construction Company]
195 NLRB 1 2 In 5 (1972) of the EEOA provisions upon the Act and
astride the Board s stabilized hearings and appeals system while bypassing
the largely informal methods of conference conciliation and persuasion
(EEOA Sec 705 [b] 42 U S C A Sec 2000e-5 [b]) which as Mr Justice
Marshall points out in Emporium Capwell Congress saw fit to design and
entrust to EEOC as a specialized agency for the accomplishment of the
statutory purposes In court Civil Rights Act and EEOA litigation the Judi
cial arm does not appear to have been receptive to appeals to shunt aside
seemingly conflicting Taft Hartley policy considerations See e g Jersey
Central Power & Light Co v Local Unions 327 749 1289 1298 1303 1309
and 1314 IBEW 508 F 2d 687 (C A 3 1975) You v North American Rock
well Corporation etc 501 F 2d 398 (C A 9 1974)
of the population at large as well as of the N Y C SMSA)
and all religious, racial, ethnic, and age groups comprising
the labor force in an "appropriate" place or area 26 How
could collective bargaining-that which the Act is pur-
posed and the Board charged to promote-exist, let alone
thrive, under such a requirement? In the real world of in
dustrial relations, bargaining thus delayed would truly be
bargaining denied
Respondent's "evidence" on this subject has been de-
scribed I do not regard it in any event as sufficient, in the
light of rebuttal evidence, to establish what the first affir-
mative defense (as modified at the hearing) alleges or to
relieve Respondent of its statutory bargaining obligation,
under Bekins, Mansion House II, or otherwise To begin
with, Bekins and Mansion House II controlling, dealt only
with racially discriminatory practices as warrant for with-
holding certification (Bekins) or asjustification for not bar-
gaining (Mansion House II, decided before Bekins), and the
Board in Bekins and sequel cases 27 expressly limited even
the withholding of certification to unions practicing racial
discrimination, explicitly excluding sexual discrimination
as a reason for withholding certification Presumably Be
kins was the product of concern by a Board majority for
the desirability of supplying a new avenue of effective im-
plementation of the overriding national policy consider-
ations underlying the Civil Rights Act of 1964 and the
EEOA The intent to limit the principles it declared in Be
kins to that single area (i e, civil rights implementation to
extirpate racial discrimination in industry) is manifest from
the Board majority s opinions in that and succeeding cases
There is no indication that-as Respondent now sug-
gests-the Board intended in Bekins to universalize the
principle there declared so as to provide for employers a
ready escape hatch from their obligation to bargain collec-
tively under the Act by permitting them to assert as a de-
fense to an unfair labor practices complaint that a union
freshly certified by the Board is not a suitable representa-
tive (from the employer's point of view) of the employees
who have selected it in an official secret ballot election
because its membership does not correspond mathemati-
cally to the relative proportions of the sexes in the popula-
tion at large or in the `relevant" labor force
26 Since females like males constitute an across the board broadest pop
ulation classification or segment they like males include black white
and other colors ethnic groups religions and ages Would the Acts bar
gaining obligation hinge on satisfying a multidimensional mathematical
fragmentation for example on whether a union concededly not discrimi
nating against black persons-as herein-has an appropriate proportionate
share of black females as distinguished from black males in ito Like pro
jections could be made in a variety of other directions As Mr Justice
Marshall sagely intimated in Emporium Capwell supra policies against dis
crimination may be defeated if overrefined and mechanisms for achieving
equality in various fields of endeavor have in the congressional wisdom
been entrusted to different agencies armed with different weaponry other
wise administrative malocclusion and chaos could well corrupt all programs
and confound the overall policy of ending discrimination in employment
Perhaps the simple ultimate truth is that at the present stage of our societal
development for a variety of reasons-constitutional statutory ethical so
ciological administrative economic pragmatic and other some now rela
lively clear and hopefully correctly understood others at best indistinctly
perceived and yet to be sorted out-although the process has started we are
not yet ready or do not know how to beat every last sword into a plow
share at the very same time Attempt to cure all ills simultaneously may
result in correction of none
27 See fn 19 supra
B BROWN ASSOCIATES 937
Beyond the foregoing, however Respondents evidence
of sexual discrimination here, even assuming arguendo it is
established by the mere small proportion of women mem-
bers in the Union without more, is effectively rebutted by
the countervailing, uncontradicted, credited proof that the
Union unreservedly admits females to its membership and
apprenticeship program, that it has at no time within at
least the past 20 years denied membership or apprentice-
ship to any female , that it has at all of those times referred
applicants for employment regardless of sex, that the
Union's hiring hall is not the sole or required supplier of
employees, that union membership is not required in order
to be hired, that it is the employers who do the hiring of
any employees they desire from any source they desire and
that the Union has in no way discriminated against fe
males The Union's apprenticeship program meets the
equal employment opportunities and no-sex discrimination
standards of both the U S Department of Labor and the
New York State Department of Labor Not a scintilla of
evidence has been presented to establish any actual dis-
crimination by the Union against females , indeed, Respon-
dent concedes it has none There thus remains only the
bare fact of the minuscule number of female members of
the Union-a fact which, taken alone, under the circum-
stances shown , is insufficient to establish that the Union
engaged in rank and invidious discrimination against fe
males as alleged Although speculation as to the reason for
the small number of females in the Union need not be
resorted to here, it is possible for example that for one
reason or another, historically or otherwise, they have been
unattracted to this particular kind of work, which at least
at one time may have been regarded as "heavy and dirty
But whatever the reason is, the uncontradicted credited ev-
idence establishes that females have been admitted to the
Union and all of its qualificational and employment pro-
grams when they have applied, and they would be admit-
ted on a larger scale if they sought admission qualification,
and employment on a larger scale , without regard to the
fact that they are females as distinguished from males 28
This being the case , and since discrimination consists of
treating differently those who are in relevant respects alike,
rank and invidious discrimination by the Union against
females has not been established here by substantial credi
ble evidence upon the record as a whole as required, and
Respondent's first affirmative defense accordingly fails 29
28 As has been stated a number of times the Union does not control
whom Respondent elects to employ Thus if Respondent is as dedicated as
it purports to be to the cause of providing greater employment to females it
could hire more females or even only females to work in its shop The
females could then if they wish to do so join the Union augmenting its
ranks and eventually possibly constituting a majority and even controlling it
(in the ma-iner in which Respondent complains that males now control it)
but whether or not they wish to do so is their personal privilege and not a
matter for Respondents lawful concern to the extent of excusing Respon
dent from compliance with its statutory bargaining obligation
29 For a variety of reasons the labor force statistics which have been
supplied by General Counsel are not helpful here To cite but a few of those
reasons the statistics-taking them at face value and without inquiry as to
their collectional, compilational evaluational or definitional validity-show
only labor force and employment (or unemployment) percentages not
union membership percentages there is no reason to assume that the labor
force statistics correspond to the same population as the union membership
the Union here does not do the hiring of employees there is no showing of
Cf Grants Furniture Plaza, Inc, of West Palm Beach, Fla,
213 NLRB 410 (1974), Grants Furniture Plaza, Inc, of
Stuart, Fla, 213 NLRB 413 (1974), Bell & Howell Compa
ny, 213 NLRB 407 (1974), Williams Enterprises, Inc, 212
NLRB 880 (1974), Hawkins Construction Company 210
NLRB 965 (1974), Washington Sheraton Corporation d/b/a
Sheraton Park Hotel, 199 NLRB 728 (1974), American
Mailing Corporation 197 NLRB 246 (1974), Master Slack,
etc, Corp, 221 NLRB 894 (1975) Cf also Emporium Cap
well Co and N L R B v Western Addition Community Or
ganization, et al 420 U S 50 (1975), Jubilee Manufacturing
Company, 202 NLRB 272 (1973)
4 Second affirmative defense the Union's allegedly
improper representation of bargaining unit employees, as
a defense to Respondents collective-bargaining
obligation
Respondent's second affirmative defense, interposed by
amendment of its answer at the hearing, is that it is excused
from the statutory bargaining obligation with the Union
because the latter is not "fully and fairly" representing the
interests of "all members of bargaining units for which it is
certified or recognized "
While a union is unquestionably required to represent its
members as well as nonmember bargaining unit employees
faithfully and properly, its failure to do so is redressable by
its members and nonmember bargaining unit employees
through unfair labor practice proceedings before the
Board, as well as under Section 301 of Title III of the
Labor Management Relations Act, 1947, and perhaps
otherwise,30 and not by way of excuse or defense to an
employer refusing to bargain as required by the Act No
single employee here asserts such a claim against the
Union Over a generation ago the Supreme Court pointed
out, in the landmark case of Brooks v N L R B, 348 U S
96 at 103 that `The underlying purpose of this statute [i e ,
the National Labor Relations Act] is industrial peace To
allow employers to rely on employees' rights in refusing to
bargain with the formally designated union is not condu-
percentages of union members and nonmembers generally nor specifically
in the particular Union here there is no showing in relation to the unit skills
here involved and there is no necessary correlation or relationship between
the number of persons employed or available for employment in the labor
market and those who are union members (generally or in the specific
Union here)-particularly as applied to a given industry and even more
particularly as applied to a given shop Those statistics like arrows shot into
the air to fall one knows not where are wide of the mark here Cf Grants
Furniture Plaza Inc of West Palm Beach Fla supra Grants Furniture Pla
za Inc of Stuart Fla supra Bell & Howell Company supra
30Cf eg Vaca v Sipes 386 U S 171 (1967) Humphrey v Moore 375
U S 335 349-350 (1964) Ford Motor Co v Huffman et at 345 U S 330
337-339 (1953) Kaj Kling v N L R B 503 F 2d 1044 (C A 9 1975) Pacific
Maritime Association 209 NLRB 519 (1974) Port Drum Company 170
NLRB 555 (1968) Local Union No 12 United Rubber etc Workers (The
Business League of Gasden) 150 NLRB 312 (1965) enfd 368 F 2d 12 (C A
5 1966) cert denied 389 U S 837 (1967) Miranda Fuel Co 140 NLRB 181
(1962) enforcement denied 326 F 2d 172 (C A 2 1963) International
Union United Automobile Aircraft and Agricultural Implements of America
AFL-CIO and Amalgamated Local 453 (Maremont Corporation) 149 NLRB
482 (1964) Local 1367 ILA (Galveston Maritime Association Inc) 148
NLRB 897 (1964) enfd 368 F 2d 1010 (C A 5 1966) Independent Metal
Workers Union Local I & 2 (Hughes Tool Company) 147 NLRB 1573
(1964) Zalejko v RCA 67 LRRM 2259 ( 1967) See also generally articles
cited in fn 42 of Port Drum Company 170 NLRB at 569
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cave to that end, it is inimical to it " Obviously the
employer's bargaining obligation is not dependent upon
whether the union is acceptable to or persona non grata
to the employer (N L R B v Signal Manufacturing Compa
ny, 351 F 2d 471 (C A 1, 1965), cert denied 382 U S 985
(1966)) Chief Justice (then Circuit Judge) Burger alluded
to this principle approvingly in Local 57, ILGWU
[Garwin Corporation] v N L R B, 374 F 2d 295, 308
(C A D C, 1967), cert denied 387 U S 942, in speaking of
"an employer who relies on [employees ] rights to preserve
the benefits of its unfair labor practices "
Respondent concedes it is unable to cite a single case in
support of the proposition it here urges, that an employer
need not bargain with a union that the employer asserts is
not "fully and fairly" representing its members or unit em-
ployees, and in my opinion such a principle would do the
Act and its intended beneficiaries, as well as its underlying
public policy, much mischief For one thing, it would intro-
duce incalculable confusion into the administration of the
Act to permit employers to refuse to bargain collectively as
required by statute, on the assertion that a duly designated
or certified bargaining representative is not fairly and fully
representing its members Matters of that nature are for the
members or employees themselves to assert and vindicate
in numerous ways, nonhtigational as well as litigational,
open to them for that purpose Interpos.tion of the employ-
er into this picture, as a defense to an unfair labor practices
proceeding against the employer would, further, promote
the very sort of employer interference and meddling into
employees' organizational activities that is one of the pur-
poses (as well as provisions-Sec 8[a][2]) of the Act to
prevent 31 Beyond all of this, such a claim and defense are
premature here since the Union has not, because of
Respondent's continuing refusal to recognize or bargain
with it, at any time represented or bargained for the unit
employees, and, finally, the evidence fails to establish
Respondent's contention 32 I accordingly reject Respon-
dent's second affirmative defense
Respondent having admitted that it has refused and is
continuing to refuse to recognize or bargain with the
Union notwithstanding its certification by the Board as the
duly elected bargaining representative of Respondent's em
ployees in the bargaining unit found appropriate by the
Board, and Respondent having further admitted that it has
unilaterally and without resort to the Union granted wage
increases and promised additional work betterments to
unit employees at times when they were represented by the
31 This is not to say that an employer cannot report such a matter for such
action as is warranted An employer as any person wishing to report an
infraction of the Act is free under established orderly procedures to file a
charge in a Regional Office of the Board for investigation processing and
prosecution by the General Counsel who under the statutory scheme is
vested with unfettered discretion as to whether or not to issue an unfair
labor practices complaint The union could then defend and interested par
ties including affected employees could presumably intervene in any ensu
ing unfair labor practices case and hearing The employer is of course also
free to report such matters elsewhere as well as to call them to the attention
of its employees
32 To the degree that Respondents second affirmative defense is or may
be another way of raising essentially the same contention as is set forth in its
first affirmative defense that contention has already been dealt with in sec
III B 3 supra
Union as bargaining representative, and Respondent not
having established any valid factual or legal reason for so
doing, it follows and is hereby found that Respondent has
committed the acts alleged in the consolidated complaint
as unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act
Upon the foregoing findings and the entire record, I
state the following
CONCLUSIONS OF LAW
A Jurisdiction is properly asserted in this proceeding
B By refusing on and at all times since September 8,
1973, to recognize and bargain with the Union as the duly
certified exclusive collective bargaining representative of
Respondent's employees in the following unit appropriate
for collective bargaining, and by granting wage increases to
employees in said unit in December 1973 and January 1974
and promising in December 1973 to give said employees
further work improvements, without notification to or con-
sultation or bargaining with the Union at times when the
Union was the duly certified exclusive collective-bargain
ing representative of said unit employees, Respondent has
refused and is continuing to refuse to bargain collectively
with the representative of its employees, in violation of Sec-
tion 8(a)(5) of the Act, and has interfered with, restrained,
and coerced its employees, and is continuing so to do, in
violation of Section 8(a)(1) of the Act
The appropriate collective bargaining unit is
All full-time and regular part-time pressmen and
lithographic printing employees including letter and
offset pressmen, cameramen, platemakers, strippers
and artists employees of the Employer, employed at its
New York, New York plant, exclusive of all other em-
ployees, office clerical employees, bindery employees,
mailers, warehouse employees shipping and receiving
employees, addressograph employees, typists, mainte-
nance employees, reproduction typists, list mainte-
nance employees, bookkeepers, file clerks, expediters
(inside sales persons), outside sales persons, guards,
watchmen and all supervisors as defined in Section
2(11) of the Act
C Said unfair labor practices and each of them have
affected, are affecting, and unless permanently restrained
and enjoined will continue to affect, commerce within the
meaning of Section 2(6) and (7) of the Act
D Respondent has failed to establish the matters affir-
matively set forth in its answer as amended herein, in fact
or in law as defenses to this proceeding
REMEDY
Respondent, having been found to have violated Section
8(a)(5) and (1) of the Act, will be required to cease and
desist from continuing such or like violation, to bargain
collectively in good faith with the Union in accordance
with the Act's command, and to post a notice to its em-
ployees accordingly
The Charging Party seeks an additional remedy, namely,
imposition of costs To that end, the Charging Party points
B BROWN ASSOCIATES
not only to the prolonged delays occasioned by
Respondent's continued resistance at every turn to collec-
tive bargaining, but also to such circumstances as
Respondent's interposition of an affirmative defense (i e,
alleged racial discrimination) withdrawn at the hearing as
being without substance Additionally, the Charging Party
has introduced uncontradicted credited proof at the hear-
ing, through testimony not only of Union Representative
Settle but also its counsel, Walter M Colleran-a member
of the New York Bar for almost 40 years-which it con-
tends is indicative of a pattern of bad-faith intent on
Respondent's part to frustrate the congressionally declared
national labor policy of encouraging collective bargaining,
through a continuing strategy of technical roadblocks to its
fruition, notwithstanding the statutory election and Board
certification Their testimony indicates, for example, that
Respondent has stated its purpose of prolonging its resis-
tance to collective bargaining for years, until finally re-
quired to do so by a Federal Court of Appeals when the
case is eventually reached for decision at that level-there-
by "buying time" by taking advantage of (and further en-
gorging) engorged court calendars, until the union loses
"bargaining power' through the impatience and disaffec-
tion of its unit members, who have meanwhile been grant-
ed unilateral wage increases and promised further better-
ments without the union According to the Charging Party,
Respondent has made it clear that there will be no' light at
the end of the tunnel' for the Union, but only a "futile
result" after the expenditure of much time, effort, and
money by the Union
While I credit the uncontradicted testimony of these wit-
nesses and am sympathetic to the plight and appeal of the
Charging Party in the circumstances described and would
be inclined, had I a free hand to do so, to allow costs as
prayed, nevertheless, being heedful of the Board's policy to
date of declining to award costs in situations such as this 33
-even though the imposition of costs could predictably
reduce the overtaxed facilities of the Board-I am con-
strained to deny the application for costs, but without prej-
udice to its renewal (coupled, if appropriate, with other
relief the need for which is not yet ripe) in the event there
should be a subsequent proceeding or proceedings involv
ing any failure to bargain collectively in good faith as re
quired by the order herein 34 The certification year will,
however be extended so as to commence when Respon-
dent begins to bargain collectively in good faith pursuant
to timely demand 35
Upon the basis of the foregoing find'ngs of fact conclu-
sions of law, and the entire record in this consolidated pro-
33 Cf e g Russell Motors Inc 198 NLRB 351 (1972) enfd as modified
sub nom Amalgamated Local Union 355 481 F 2d 996 (C A 2 1973)
34 Cf Chief Justice (then Circuit Judge) Burger in Local 57 ILGWU v
N L R B (Garwin Corp) 374 F 2d 295 304 fn 22 (C A D C 1967) cert
denied 387 U S 942 Tiidee Products Inc 196 NLRB 158 159 (1972) and
194 NLRB 1234 enfd as modified 502 F 2d 349 (C A D C) cert denied
421 U S 991 (1975) Hecks Inc 215 NLRB 765 (1974)
35 King Radio Corporation Inc 172 NLRB 1051 1080 (1968) enfd 416
F 2d 569 (C A 10 1969) cert denied 397 U S 1007 (1970) Mar Jac Poultry
Company Inc 136 NLRB 785 Commerce Company d/b/a Lamar Hotel 140
NLRB 226 229 enfd 328 F 2d 600 (CA 5 1964) cert denied 379 U S 817
(1964) Burnett Construction Company 149 NLRB 1419 1421 (1964) enfd
350 F 2d 57 (C A 10 1965)
939
ceeding, and pursuant to Section 10(c) of the Act, I hereby
issue the following
ORDER 36
The Respondent B Brown Associates, Inc, New York,
New York, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Refusing or failing to recognize and bargain collec-
tively in good faith concerning rates of pay, wages, hours,
and other terms and conditions of employment, with New
York Printing Pressmen & Offset Workers Union No 51,
affilitated with the International Printing Pressmen and
Assistants Union of North America, AFL-CIO, as the
duly certified exclusive-bargaining representative of
Respondent's employees in the appropriate collective bar-
gaining unit set forth below, and to embody in a signed
contract any understanding reached The appropriate col
lective bargaining unit is
All full time and regular part-time pressmen and
lithographic printing employees including letter and
offset pressmen, cameramen, platemakers, strippers
and artists employees of the Employer, employed at its
New York, New York plant, exclusive of all other em-
ployees, office clerical employees, bindery employees,
mailers, warehouse employees, shipping and receiving
employees, addressograph employees, typists, mainte-
nance employees, reproduction typists, list mainte-
nance employees, bookkeepers, file clerks, expediters
(inside sales persons), outside sales persons, guards,
watchmen and all supervisors as defined in Section
2(11) of the Act
(b) Granting or placing into effect, or promising to grant
or place into effect, wage increases or any other change in
rates of pay, wages, hours, or other terms or conditions of
employment, without notifying and bargaining in good
faith with said Union as the exclusive collective-bargaining
representative of Respondents employees in the foregoing
unit, but without prejudice to any wage increases or eco-
nomic betterments heretofore placed into effect
(c) Interfering with, restraining, or coercing its employ-
ees in the exercise of their right to self-organization
through refusing or failing to bargain collectively with their
duly selected representative or through unilaterally institut-
ing or promising wage increases or other job betterments
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act
2 Take the following affirmative actions, necessary to
effectuate the policies of the Act
(a) Upon request bargain in good faith with the afore-
said Union as the exclusive collective-bargaining represen-
tative of Respondent's employees in the foregoing appro-
36In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order which follows herein shall as provid
ed in Sec 102 48 of those Rules and Regulations be adopted by the Board
and become its findings conclusions and Order and all objections thereto
shall be deemed waived for all purposes
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate collective-bargaining unit, and embody in a signed
contract any understanding reached The required collec-
tive-bargaining period shall commence when Respondent
commences to bargain in good faith, and the said Union's
certification with regard to said unit is hereby extended for
a period of 1 year from the date when Respondent com-
mences to bargain in good faith with said Union in respect
thereto
(b) Post at its printing plant premises in New York cop
ies of the attached notice marked "Appendix " 37 Copies of
said notice, on forms provided by the Board's Regional
Director for Region 2, after being signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are cus-
tomarily posted Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
37 In the event this Order is enforced by a Judgment of a United States
Court of Appeals the words in the notice reading Posted by Order of the
National Labor Relations Board shall read Posted Pursuant to a Judg
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge, at
which all sides had the opportunity to present evidence and
arguments, the Decision has been announced that we, B
Brown Associates, Inc, have violated the National Labor
Relations Act We have therefore been ordered to post this
notice and to do what it says
The National Labor Relations Act gives employees
these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
thier own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things
We accordingly assure you that
WE WILL NOT violate these rights of yours
WE WILL NOT place into effect or promise any change
in rates of pay, wages, hours, and terms or conditions
of employment without first notifying and bargaining
collectively in good faith with New York Printing
Pressmen & Offset Workers Union No 51, affiliated
with the International Printing Pressmen and Assis-
tants Union of North America, AFL-CIO as the ex-
clusive bargaining representative of our employees in
the appropriate collective-bargaining unit set forth be-
low This shall not affect any wage increase or eco-
nomic betterment heretofore placed into effect The
appropriate collective bargaining unit is
All full-time and regular part-time pressmen and
lithographic printing employees including letter and
offset pressmen, cameramen, platemakers, strippers
and artists employees of the Employer, employed at
its New York, New York plant, exclusive of all
other employees, office clerical employees, bindery
employees, mailers, warehouse employees, shipping
and receiving employees, addressograph employees,
typists, maintenance employees, reproduction typ-
ists, list maintenance employees, bookkeepers, file
clerks, expediters (inside sales persons), outside
sales persons, guards, watchmen and all supervisors
as defined in Section 2(11) of the Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Na
tional Labor Relations Act
WE WILL, upon request, recognize and bargain col
lectively in good faith, regarding rates of pay, wages,
hours, and other terms and conditions of employment
with the above Union as the exclusive collective bar
gaining representative of our employees in the above
appropriate collective-bargaining unit, and embody in
a signed contract any agreement reached
B BROWN ASSOCIATES, INC