Grants Furniture Plaza, Inc. of West Palm Beach, Fla.

National Labor Relations Board - Board Decisions

Sep 20, 1974

213 N.L.R.B. 410 (N.L.R.B. 1974)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grants Furniture Plaza , Inc. of West Palm Beach, Fla.
and Freight Drivers , Warehousemen and Helpers,
Local Union No. 390, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Petitioner . Case 12-
RC-4396
September 20, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
Pursuant to a Decision and Direction of Election
issued by the Regional Director of Region 12 on No-
vember 7, 1973, an election by secret ballot was con-
ducted on December 7, 1973, under the direction and
supervision of the Regional Director, among the em-
ployees in the unit described below. The tally of bal-
lots furnished the parties at the conclusion of the
election showed that of approximately 12 eligible vot-
ers, 11 valid ballots were cast, of which 8 were for, and
3 against, the Petitioner. Thereafter, on December 14,
1973, the Employer filed timely objections to the elec-
tion.
On February 13, 1974, the Regional Director issued
his Report on Objections and Recommendations to
the Board pursuant to Section 102.67 (c) of the
Board's Rules and Regulations. In his report, the Re-
gional Director recommended that the Employer's
objections be overruled. Thereafter, the Employer
filed exceptions to the Regional Director's report and
recommendation.
Upon the entire record in this proceeding,' the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. We find the following employees constitute an
appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
carpet warehouse; but excluding sales employ-
ees, office clerical employees, guards and super-
visors as defined in the Act.
In the Employer's exceptions, it argues, inter alia,
that the Petitioner is guilty of "an established pattern
and practice of discriminatory employment." In sup-
port of its contentions, the Employer submitted statis-
tical data allegedly showing an imbalance with
respect to female and Spanish-surnamed members of
Petitioner and the demographic character of the Mi-
ami Standard Metropoliton Statistical Area (SMSA).2
Additionally the Employer submitted a copy of a De-
partment of Justice complaint which alleged that the
Petitioner's International, through its National Mas-
ter Freight Agreement (NMFA) and its area supple-
ments, perpetuates prior discriminatory practices
against blacks and Spanish-surnamed Americans by
requiring them to give up their seniority for bidding
and layoff purposes if they transfer from service posi-
tions to a higher paying road position.
As to the Department of Justice complaint, it is our
view that mere allegations of wrongdoing do not con-
stitute evidence adequate to support an objection,
whether in this or in any other context. Evidence must
consist of facts, not mere accusations which yet re-
main to be proven. To withhold a certification we
must be persuaded by affirmative evidence of a factu-
al nature, and even to direct a hearing on the basis of
an objection there must be prima facie factual proof
submitted to our Regional Director of a kind which
would be admissible into evidence at a hearing and
subjected to evaluation as to its weight and probative
force. The unproven allegations of a complaint,
whether filed by an individual or by a governmental
agency do not constitute proof, or even competent
evidence, under well-established rules of evidence.
Nor do we find sufficient to warrant a hearing the
evidence offered in the form of statistics purporting to
show that the labor organization seeking certification
here has a membership in which certain minority
groups appear in numbers less than the population
ratio of such minorities to the total population in the
area in which this labor organization operates. No
evidence was proffered here to show that the Peti-
tioner, through a hiring hall or other means, exercises
All full-time and regular part-time warehouse-
men, drivers and driver helpers, receiving and
shipping clerks, and maids employed by Grants
Furniture Plaza, Inc. of West Palm Beach, Fla.,
at Employer's store, accessory warehouse, and
1 The Employer's request for oral argument is hereby denied , as the record
and the briefs adequately present the issues and positions of the parties.
2 The Employer argues that the affidavit of Travis Dumas, president of
Petitioner , states that the percentage of minority members to white members
are as follows; approximately 12-1/2 percent Spanish and 12-1/2 percent
female . Moreover, the Employer contends that the "General and Social
Economic Characteristics of Florida," as compiled by the United States
Department of Commerce , Social and Economics Statistics Administration,
Bureau of Census, indicates that, for the Miami area , the percentage popula-
tion of Spanish and Spanish -surnamed individuals is 26 .6 percent, the per-
centage of available females in the work force in the Miami area is 49.2
percent.
GRANTS FURNITURE PLAZA, INC.
any control whatsoever over the racial, sexual or eth-
nic composition of those who enter the work force
and, thus, those who are or may become its members.
In the absence of such evidence we must assume that
the employers in the area exercise the true control
over the selection of the work forces, and that only
after the employer selection process has been effective
do employees normally either voluntarily seek mem-
bership in the union or, in some instances, do so as
required under the terms of a valid union-security
agreement.
Without passing, therefore, in this case, upon the
appropriate weight to be given statistical data as to the
racial or ethnic composition of the Union's member-
ship in a setting wherein evidence is offered to show
either that the Union controls or substantially influ-
ences access to employment, or deliberately restricts
access to its own membership rolls, we conclude that
it would be improper to draw any inferences of union
propensity for discrimination on the sole basis of such
statistical evidence in the instant setting. We therefore
conclude in agreement with the Regional Director
that this statistical evidence standing alone is insuffi-
cient to warrant the holding of a hearing.
Accordingly, as we find the evidence insufficient to
disqualify the Petitioner from receiving a Board certi-
fication, and as the Petitioner has received a majority
of the valid votes cast, we shall certify the Petitioner
as the collective-bargaining representative of the em-
ployees in the unit found appropriate herein.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Freight Drivers, Ware-
housemen and Helpers, Local Union No. 390, an af-
filiate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended, the said labor orga-
nization is the exclusive representative of all the em-
ployees in the unit found appropriate herein for the
purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, or other condi-
tions of employment.
MEMBER KENNEDY , concurring:
I agree that the Employer's objections to the elec-
tion should be overruled and a certification of repre-
sentative should be issued in this case.
In Bekins Moving & Storage Co. of Florida, Inc., 211
NLRB No. 7 (1974), I indicated that the Board's in-
quiry in a precertification representation proceeding
involving the issue of unlawful discrimination by a
labor organization should be no broader than is con-
411
stitutionally required. I believe the Board must enter-
tain allegations that a labor organization excludes
persons from membership on the basis of race, alien-
age, or national origin.
I also stated in Bekins and in Bell and Howell Co.,
213 NLRB No. 79, that until the proposed 27th
amendment to the Constitution is adopted by the re-
quisite number of States, or until the Supreme Court
determines that classifications based on sex are inher-
ently suspect,' the Board should not consider allega-
tions of sex discrimination in a precertification
representation proceeding. Thus, I will not address
myself to the issue of sex discrimination raised by the
Employer in this case because it is raised prior to the
issuance of a certification by the Board.
However, even if I believed that the Constitution
compelled consideration of alleged sex discrimination
by a union before certification, I would not find that
the Employer has shown that the Petitioner involved
herein has engaged in such discrimination. Standing
alone, I do not believe a statistical imbalance with
respect to the percentage of women members of Peti-
tioner in contrast to the percentage of women in the
Miami area is prima facie evidence of unlawful dis-
crimination. For the same reason, I do not believe the
Employer has presented prima facie evidence of un-
lawful discrimination with respect to Spanish-speak-
ing individuals.
Statistics as to the race, sex, or national origin of
members of a union are not persuasive evidence,
standing alone, that a union engages in discrimination
on any of those bases. Such statistics may only reflect
the race, sex, and national origin of the employees
hired by employers in the bargaining units which the
union represents. The ultimate control over the hiring
of employees in those units rests with the employers.
Yet, if the union is the certified or recognized bargain-
ing agent for the units, it must represent all of the
employees. Therefore, particularly where a union-se-
curity clause is present, the composition of the union
membership may only be a reflection of several em-
ployers' hiring policies and not evidence of a pattern
or plan of discrimination by a union. Merely examin-
ing statistics concerning union members in such in-
stances would not be meaningful in the absence of
other evidence indicating discrimination by the
union.
In summary, I would not regard statistics alone,
such as those presented here, as a reliable indication
of discrimination in union membership. It would be
untenable, in my view, to rely solely on statistical
imbalances as evidence of union discrimination. Such
3 See Kahn v. Shevin, Attorney General of Florida, et al., 416 U.S. 351 (1974),
and Geduldig v. Aiello, 417 U.S. 484 (June 17, 1974).
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
imbalances may be nothing more than a reflection of
the total composition of bargaining units which the
union is obligated to represent.
Finally, I am not persuaded that the issuance of the
complaint by the Department of Justice against the
Petitioner's International alleging contract discrimi-
nation based on race and national origin is prima facie
evidence that such discrimination does , in fact , exist.
It is a relevant consideration , but here it concerns
contractual provisions which, if the allegations prove
to be true, may show a breach of the union 's duty to
fairly represent all employees . But the duty of fair
representation arises from the statute as an obligation
imposed on a collective-bargaining representative to
deal with all the employees it represents fairly. A
union which enjoys the right created solely by statute
to represent exclusively a unit of employees also bears
the burden of representing those employees fairly. As
I stated in Bekins Moving & Storage, I view this right
of a union to be an exclusive collective-bargaining
representative to be derived from the Act and the
concurrent obligation of the union to be bound to a
duty of fair representation also to derive from the Act.
I do not view either of these rights or obligations to
have their origin in the Constitution. For that reason,
the Department of Justice complaint concerning con-
tract terms has more relevance in a postcertification
inquiry after the duty of fair representation has at-
tached.
MEMBERS FANNING and PENELLO, concurring:
We concur in the result for the reasons stated in our
dissenting opinion in Bekins Moving & Storage, supra.