Bell & Howell Co.

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 420 (N.L.R.B. 1977)

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 C o p ,
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, 3 8 4 5
(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 U S . 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 ) ) w n d p z j -! 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 N L R B 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."