Tanner Motor Livery, Ltd.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 551 (N.L.R.B. 1967)

TANNER MOTOR LIVERY, LTD. 551
Tanner Motor Livery, Ltd. and Martin Abramson.
Case 31-CA-5 (formerly Case 21-CA-5500)
June 30,1967
SUPPLEMENTAL DECISION AND ORDER
On September 29, 1964, the National Labor
Relations Board issued its Decision and Order in
the above-entitled proceeding,' finding that the
Respondent violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by discharging
its employees Abramson and Dorbin because they
had engaged in concerted activities to protest the
Respondent's alleged racially discriminatory hiring
practices and policies, and by threatening to
discharge Dorbin if he continued to engage in such
conduct. Accordingly, the Board ordered the
Respondent to cease and desist from engaging in
the unfair labor practices found and to take certain
affirmative action designed to remedy these unfair
labor practices. Specifically, it ordered the Re-
spondent to reinstate Abramson z and reimburse
him for any loss of pay suffered by him as a result
of the discrimination.
Subsequently, on June 29, 1965, the United
States Court of Appeals for the Ninth Circuit3
affirmed the Board's finding that the concerted ac-
tivities of the employees, in attempting to persuade
the Respondent to employ Negroes, was protected
by Section 7 of the Act. The court also agreed with
the Board's finding that Abramson and Dorbin
were discharged because they had engaged in such
protected concerted activities. However, the court
was of the further opinion ". . . that the existence of
a collective-bargaining agreement between the Em-
ployer and the Union raises further questions which
are of such importance that the Board ought to give
consideration to them before requiring reinstate-
ment of employees under such circumstances." The
court accordingly remanded the case for the Board
to consider whether an employer may lawfully
discharge employees who engage in otherwise pro-
tected concerted activities, or who picket in support
of such activities, when there is an established col-
lective-bargaining representative having a contract
with the employer and the employees do not act or
seek to act through that representative. Stated
another way, the court asked "... to what extent
does Section 9(a) limit or remove the protection af-
forded by Section 7?"
Pursuant to the remand, the Board, on August 30,
1965, invited the parties to file briefs or comments
discussing the legal issues raised by the court.
Thereafter, briefs were filed by the General Coun-
sel and by the Respondent.4 In addition, the
AFL-CIO submitted its comments in an amicus
brief.
The Board has considered its original Decision
and Order, the opinion of the court and the issues
raised by its remand order, the briefs, and the entire
record in this case, and hereby reaffirms its conclu-
sion that the Respondent violated Section 8(a)(1) of
the Act.
The record does not establish whether Abramson
and Dorbin had attempted to act through their
established bargaining representatives before ad-
dressing their concerted protest directly to their
Employer. In our opinion, however, such a finding
is not essential herein. Nor do we find it necessary,
as suggested by the court, to determine whether the
employees were filing a grievance under the proviso
to Section 9(a), or whether they were attempting to
bargain individually with their Employer. For, in
either event, the employees were not acting in
derogation of their established bargaining agent by
seeking to eliminate what they deemed to be a
morally unconscionable,6 if not an unlawful, condi-
tion of employment. In these circumstances, we are
unable to find that the Union's status as the em-
ployees' exclusive bargaining agent was infringed,
imperiled, or otherwise undermined when the em-
ployees engaged in a concerted effort to secure ra-
cially integrated working conditions. Nor is it con-
tended that Abramson and Dorbin were discharged
because they were undermining, or seeking to un-
dermine, the Union.
In addition, the Board cannot presume or con-
clude that, contrary to the course being urged by
Abramson and Dorbin, the Union knowingly would
have taken the unlawful position that it would
a 148 NLRB 1402.
z Durbin was offered immediate reinstatement before incurring loss of
pay, as set forth in the Board's Decision and Order, ibid
3 N.L R.B. v Tanner Motor Livery, Ltd, 349 F.2d 1 (C.A. 9).
4 In its brief following the remand, the Respondent conceded that "Dor-
bin was fired for picketing . . [and] Abramson was fired because of his
persistent efforts to persuade Tanner to hire a negro [sic] that Tanner did
not think was qualified " The record, however, does not sustain the con-
tention that the employees' efforts were limited to securing the employ-
ment of a particular job applicant. Rather, we have found that the em
ployees' concerted activities were in protest against the general hiring
practices and policies of their Employer. Moreover, the Respondent did
not cite improper harassment as a reason for its conduct.
5 At the time of the events herein, the Respondent had a collective-bar-
gaining agreement with Chauffeurs Umon Local 640, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Umon)
6 It is undisputed that there were no Negroes among the 50 to 60
drivers employed by Respondent at its Santa Monica operation. We have
found it unnecessary to decide, however, whether the lack of Negro
drivers at that location was, in fact, motivated by racial discrimination It
is sufficient for the purposes of this decision that the employees had a
reasonable basis for so believing and that their concerted protest, there-
fore, was not grounded on contrived or flimsy evidence, which otherwise
might have reflected an intent more to harass their employer than to vier
dicate a noxious working condition.
166 NLRB No. 35
552 DECISIONS OF NATIONAL
refuse to represent Negro drivers fairly if hired.?
Rather, we must assume that these employees
were acting in accord with, and in furtherance of,
the lawful position of their collective-bargaining
agent .8 For the Board to find, therefore,_that_the
employees' otherwise protected concerted activi-
ties herein were rendered unprotected by virtue of
an existing collective-bargaining agreement
between the Union and the Respondent would be
offensive to public policy.
In view of the foregoing, we reaffirm our previous
conclusion that the Respondent, by discharging
Abramson and Dorbin, and by threatening to
discharge Dorbin, interfered with the exercise of
7 See Independent Metal Workers Union Local No. I (Hughes Tool
Company), 147 NLRB 1573; Local 1367, International Longshoremen's
Association , AFL-CIO, (Galveston Maritime Association , Inc ), 148
NLRB 897, enfd . 368 F.2d 1010 (C A 5). Chairman McCulloch and
Member Fanning , who dissented in those cases , although agreeing that it
would be unlawful for the Union to take a position contrary to that urged
LABOR RELATIONS BOARD
the employees ' rights under Section 7 of the Act
and thereby violated Section 8(a)(1) of the Act. Ac-
cordingly , the Board hereby reaffirms its Order of
September 29, 1964, in this proceeding.
Member Brown , dissenting:
Upon consideration of the Section 9(a) issue re-
manded by the Court of Appeals for the Board's
resolution in this matter , I would dismiss the com-
plaint . Black-Clawson Co., Inc. v. International As-
sociation of Machinists 313 F.2d 179, 184-186
(C.A. 2). Cf. N.L.R.B. v. Allis-Chalmers Manufac-
turing Co., 388 U.S. 175.
by Abramson and Dorbin (see Pioneer Bus Co., Inc, 140 NLRB 54), do
not consider that such a position would also be an unfair labor practice.
8 Cf, Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America v. N.L.R.B (Los Angeles-Seat-
tle Motor Express), 365 U.S 667