Petitioner Bell & Howell Co. (Bell & Howell) challenges an order of the National Labor Relations Board (NLRB) requiring Bell & Howell to bargain with Local 399, Operating Engineers (Local 399) as collective bargaining representative for Bell & Howell’s stationary engineers at its Lincoln-wood, Illinois facility.
Bell & Howell contends that it is not obligated to bargain with Local 399 because Local 399 allegedly discriminates against women in its membership policy and benefit plans. Bell & Howell also challenges certain evidentiary rulings made by the NLRB in the pre-election inquiry into the appropriateness of the bargaining unit. We affirm the Board’s decision that Bell & Howell violated §§ 8(a)(5) and (1) of the Act. 1
I. BACKGROUND
On April 25, 1973, Local 399 petitioned the NLRB for a representation election for Bell & Howell’s stations-y engineers at Lincolnwood. The NLRB held hearings before *140 a hearing officer to determine the appropriateness of the unit. During the course of that proceeding Bell & Howell sought production of Local 399’s labor contracts and records of jurisdictional disputes involving Local 399. 2 These documents were necessary, in Bell & Howell’s view, to shed light on the appropriateness of the unit. 3 At the *141 request of Local 399, the Hearing Officer revoked Bell & Howell’s subpoena on the grounds that the request was burdensome and the material irrelevant. Bell & Howell appealed unsuccessfully to the Regional Director, and the hearing then concluded.
After the hearing, Bell & Howell again appealed the evidentiary ruling to the Regional Director, who agreed to a limited reopening of the hearing to consider additional evidence on the appropriateness of the unit. 4 Bell & Howell then reissued the subpoena to Local 399. After much procedural wrangling, Local 399 finally produced ten sample contracts and offered to permit Bell & Howell to examine the remaining documents at Local 399’s offices. Although Bell & Howell complains that this constituted “blatant refusal to comply with the subpoena,” Br. for Bell Howell at 8, the Regional Director held that by producing ten contracts and making the remainder available to Bell & Howell, the union had “sufficiently complied” with the subpoena. Joint Appendix (J.A.) 74. The Regional Director found that the stationary engineers were an appropriate unit. On February 11, 1974, the NLRB denied Bell & Howell’s request for review of the Regional Director’s decision. The election, held on February 15, 1974, resulted in seven votes for Local 399, one against.
On February 20, 1974, Bell & Howell moved to disqualify Local 399 from certification because the union allegedly discriminates against women. While the motion was pending, the NLRB announced its policy toward allegations of union discrimination in representation proceedings in
Bekins Moving & Storage Co.,
Member Kennedy concurred in part in the plurality opinion. He would deny certification of a union only when the union discriminated in its membership policy on the basis of race, alienage or national origin. Id. at 145. He would not decline to certify when the complained-of practice was the union’s failure to honor its duty of fair representation. Id. Members Fanning and Pennello dissented, arguing that the Constitution did not require the Board to consider allegations of discrimination prior to certification, and that the Act, § 9(c)(1), affirmatively forbade consideration of the issue.
Shortly after the decision in
Bekins,
the Board issued its first decision in this case. In
Bell & Howell Co.,
In order to obtain judicial review of the NLRB’s decision
6
Bell & Howell refused to bargain with Local 399. Local 399 brought unfair labor practice charges against Bell & Howell, and the Board, relying on its decision in the certification proceeding, ultimately granted summary judgment against the company, and found that the refusal to bargain violated §§ 8(a)(5) and (1) of the Act.
7
Bell & Howell Co.,
On December 22, 1975, the NLRB decided
sua sponte
to reconsider its decision in this and three similar cases. On June 24, 1977, the NLRB issued its supplemental decision, affirming its earlier finding that Bell & Howell had violated §§ 8(a)(5) and (1) and ordering Bell & Howell to bargain with Local 399.
Bell & Howell Co.,
II. THE BOARD’S REFUSAL TO ENTERTAIN EVIDENCE OF DISCRIMINATION BY LOCAL 399
A. Employer’s Standing to Challenge Union Discrimination
Initially, we must determine whether Bell & Howell has standing to challenge the Board’s certification of Local 399 where the challenge is based on Local 399’s alleged discrimination against women. 8 The Board, relying on Virginian By. Co. v. System Federation 40, 9 contends that an employer lacks standing to assert the constitutional rights of its employees as a defense to the statutory obligation to bargain with the employees’ chosen representative.
The economic consequences of a bargaining order to an employer appear sufficient to establish “injury in fact,” the element of standing mandated by the case or controversy requirement of Article III. 10 An em *143 ployer who has been found guilty of an unfair labor practice and has been ordered to bargain is also a “person aggrieved” within the meaning of § 10(f) of the Act. 11 Therefore, the employer is also well within the ambit of the statutory authorization to seek review. 12
Normally, however, one who properly invokes the jurisdiction of a federal court “has standing to seek redress for injuries done to him, but may not seek redress for injuries to others.”
Moose Lodge No. 107 v. Irvis,
The barrier against asserting the rights of third parties does not appear to be rooted in Article III itself, but rather is a prudential doctrine designed to limit unnecessary decisions of constitutional questions. 15 The rule against allowing a party to assert the constitutional rights of third persons has been relaxed in certain situa *144 tions, particularly where the third party’s interest might otherwise go unprotected. 16
Whether in this case the interest would otherwise go unprotected depends on precisely how the “interest” at stake is defined. If the interest is in eliminating the union’s discriminatory practices, there are alternative means of achieving this goal under both the LMRA (once the union has been certified) and Title VII, 17 and under both provisions the action can be brought by the victim of discrimination. If, on the other hand, the interest is in preventing certification of a discriminatory union, there may be no adequate alternative to allowing the employer to raise the issue. The right of a dissenting unit member, or an individual outside the unit, to intervene in a representation proceeding in order to raise the discrimination issue is questionable. 18 Moreover, even if such an individual could intervene, the nonreviewability of certification decisions might insulate from judicial review any Board decision in favor of the union. 19
We think certification in itself is sufficiently important that the constitutionality of the practice announced in
Handy Andy
should not be insulated from review. Our conclusion is reinforced by a concern that if the Board’s certification of a discriminatory union violates the Fifth Amendment, then our enforcement of a bargaining order with such a union might equally violate the Fifth Amendment. We are mindful of the Court’s observation in
Shelley v. Kraemer,
We thus conclude that Bell & Howell has standing to raise the constitutional rights of victims of discrimination in this case. Although Virginian Railway implies a contrary result, that case was decided prior to a series of cases elaborating the “jus tertii” doctrine 20 and also preceded the Supreme Court decisions holding that court enforce *145 ment of private discrimination constitutes state action in violation of the Fourteenth Amendment. 21
B. Section 9(c)(1) of the LMRA
Section §(c)(l) of the LMRA provides, inter alia: “If the Board finds . [that] a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” 22 Although, by its terms, § 9(c)(1) is mandatory, the Board may nonetheless deny certification to a victorious union in certain limited circumstances. The Board most often exercises this authority to deny certification when the electoral process itself is tainted. 23 The Board may also decline to certify a union that has interests that conflict with those of the employees in the unit the union seeks to represent. 24 These decisions illustrate that the mandatory language of § 9(c)(1) has been, and must be read in harmony with the basic purposes of the LMRA. Where certification would be inconsistent with the dominant purposes of the Act, the Board has the discretion to deny it, despite the union’s electoral victory. 25
Although the statute does not in all cases require certification of a union chosen in an *146 election by a majority of employees, the purpose of §§ 7 & 9 of the LMRA, facilitating employee self-determination, is best served by giving broad effect to employees’ choice of a collective bargaining representative. To promote this policy, Congress has given the NLRB authority to conduct elections and to assure the prompt resolution of disputes concerning representation. Congress’ concern that representation questions be resolved speedily* is reflected prominently in its decision to limit direct judicial review of the Board’s decisions in representation proceedings. 26 Permitting an employer to inject allegations of discrimination into a representation proceeding would tend to undermine this purpose of the Act. Often an employer’s allegations will require the Board to conduct extensive investigations. 27 While these inquiries are carried out, the employees’ choice of a representative is thwarted, and the delay may prove an effective tactic for eroding the union’s support in the unit. 28 Moreover, industrial strife may be exacerbated by inducing unions to forego the Board’s electoral machinery in favor of recognitional picketing and other forms of economic pressure.
A refusal to certify a union chosen by a majority in the unit thus can be justified only in the most compelling circumstances, when certification would conflict with other significant goals of the Act. In this case Bell & Howell argues that the vital national commitment to eradicate employment discrimination justifies denying certification to Local 399.
Although other federal agencies have primary responsibilities for carrying out the national anti-discrimination policy, Bell & Howell correctly observes that the Board too has a role in promoting this goal. 29 The Board already implements this policy as an aspect of enforcing the union’s statutory duty of fair representation. 30 A *147 union violates its duty of fair representation when it takes advantage of its monopoly position as exclusive bargaining representative to discriminate invidiously against employees or potential employees on the basis of race or, sex. 31 Breach of this duty may violate §§ 8(b)(1)(A), b(2) and b(3) of the act 32 and subjects the offending union to Board-imposed sanctions 33 as well as private causes of action. 34
It is by no means certain that the interpretation of the LMRA urged by Bell & Howell would substantially further anti-discrimination goals in a manner consistent with the other policies of the LMRA. 35 First, denying certification or withholding a bargaining order from a discriminatory union may be an ineffective remedy for union discrimination. These sanctions will have no effect on unions that are strong enough to establish collective bargaining relationships with employers without recourse to the Board.
Second, these sanctions are at odds with the remedial focus of the Board’s authority. 36 At best, denying certification or withholding a bargaining order will prevent future discrimination in the unit that the union seeks to represent. That sanction provides no remedy for those who are already victims of the union’s discrimination. Yet, it is well settled that the Board’s principal remedial power is to “make whole” employees who have been injured by violations of the LMRA. 37
Finally, to give the Board responsibility for investigating allegations of past union discrimination that occurred outside the unit for which the union seeks certification would unnecessarily duplicate the functions of the EEOC. The broader scope of the *148 EEOC’s investigative and remedial authority, its expertise in detecting subtle and complex forms of discrimination, and its single-purpose anti-discrimination mission combine to make the EEOC a preferable vehicle for eliminating union discrimination. 38
In contrast to denial of certification before the union becomes exclusive bargaining representative, sanctions based on violations of the duty of fair representation are more likely to be effective in providing a remedy for victims of discrimination, in a manner more consonant with the other underlying policies of the LMRA. The duty of fair representation applies to all exclusive bargaining representatives, not simply to those who use the Board’s electoral or remedial machinery. Complaints that the union has violated its duty of fair representation are more likely to be brought by the individuals who are the victims of discrimination. This appropriately focuses the Board’s inquiry on the union’s conduct in a particular bargaining unit, easing the Board’s fact-finding activities. When the complaint is brought by a victim of discrimination, the Board can tailor its order to redress specific instances of discrimination, making the victims whole, and, at the same time, providing more protection for the employees’ right of self-determination. 39 If remedies for discrimination are imposed only after the collective bargaining relationship is established, the employer cannot use allegations of discrimination as a pretext to frustrate or delay the employees’ right to select their representative.
In sum, we conclude that nothing in the LMRA, interpreted in light of the purposes of the Act, requires the NLRB to consider allegations of discrimination prior to certifying a victorious union, at least where the proffered evidence of discrimination relates to past union misconduct outside the bargaining unit that the union seeks to represent. 40
O. Constitutional Requirements
Bell & Howell argues that granting exclusive bargaining representative status to *149 a union that discriminates against women violates the Fifth Amendment, and urges that we interpret the Act to avoid what Bell & Howell views as an unconstitutional result. 41 We reject this argument, concluding that at least under the facts of this case, the Board’s decision not to inquire further into Bell & Howell’s allegations does not violate the Fifth Amendment.
It is clear that the Fifth Amendment’s proscription
42
is not limited to discrimination initiated by the government. Governmental actions which “authorize” or “encourage” private discrimination are equally proscribed.
Reitman v. Mulkey,
These same cases establish that the Board’s actions here do not constitute authorization or encouragement of discrimination. In
Burton,
the public Parking Authority violated the Fourteenth Amendment
not
by leasing to a restaurant owner who had discriminated in the past, but rather by its failure to “affirmatively required [the restaurant] to discharge the responsibilities under the Fourteenth Amendment imposed upon the private enterprise as a consequence of state participation.”
Id.
at 725,
Here the effect of certification is to achieve precisely what was lacking in Burton, the imposition of an affirmative obligation on the private association not to discriminate. Far from authorizing and encouraging discrimination, certification subjects the union to additional sanctions for any future discrimination. 43
The Board’s decision to address claims of discrimination after certification thus seems to accord well with the relevant constitutional considerations. Once certified, a union is invested with significant governmental powers, 44 and passive acquiescence by the Board in union discrimination might well pose serious constitutional questions. Both the Court and the Board have avoided these difficulties by interpreting the Act to prohibit such discrimination, 45 and by pro *150 viding a wide variety of sanctions to enforce the prohibition.
Thus, when the only evidence of discrimination proffered is evidence of a union’s past discrimination outside the unit in question, the NLRB does not violate the Fifth Amendment by extending' certification to the union without an inquiry into the alleged discrimination. 46
III. DENIAL OF A FAIR HEARING
Bell & Howell also contends that certain evidentiary rulings, limiting the company’s right to present evidence on the Mallinckrodt factors, deprived the company of a fair hearing. 47 The Mallinckrodt factors are primarily concerned with the appropriateness of carving out a unit of craft workers from a previously established, collective bargaining unit. 48 Their rele *151 vanee is diminished where, as here, there is no previous history of collective bargaining on a broader basis. The Regional Director’s decision to reopen the hearing permitted the company to present evidence on two of the factors, 49 and the third factor is irrelevant in the absence of a prior history of collective bargaining. Moreover, Bell & Howell has failed to allege or prove any prejudice from the evidentiary rulings. Specifically, Bell & Howell does not allege that Local 399 lacks history, practice and experience in representing employees like those at Lincolnwood, nor that the area and industry practice does not include separate units such as that at Lincolnwood. Rather, the employer offered to prove only that different representation patterns prevail at some locations. 50 The Regional Director *152 also recognized the mixed pattern of representation and Bell & Howell does not contend that the finding was erroneous. Therefore we conclude that Bell & Howell was provided an ample opportunity to present relevant evidence on the appropriateness of the Unit that Local 399 sought to represent.
IV. CONCLUSION
We conclude that the Board properly certified Local 399 as the collective bargaining representative for Bell & Howell’s stationary engineers and that Bell & Howell was therefore obligated to bargain in good faith with the union. Accordingly, the decision of the Board, holding that Bell & Howell’s refusal to bargain with Local 399 violated §§ 8(a)(5) and (1) of the LMRA is
Affirmed.
Notes
. In
NLRB v. Mansion House Center Management Co.,
the claim of racial discrimination allegedly practiced by a union seeking recognition as a representative bargaining unit under the act is a relevant area of inquiry for the Board when the defense is appropriately raised before the Board upon a company’s refusal to bargain.
Id. at 474. For the reasons that appear more fully herein, we are compelled to disagree with that conclusion.
Mansion House, and the Board’s response to that decision, has been the subject of considerable interest. See generally, Axelrod & Kaufman, Mansion House — Bekins—Handy Andy: The National Labor Relations Board's Role in Racial Discrimination Cases, 45 Geo.Wash.L. Rev. 675 (1977); Leslie, Governmental Action and Standing: NLRB Certification of Discrimi *140 natory Unions, 1974 Ariz.St.L.J. 35; Meltzer, The National Labor Relations Act and Racial Discrimination: The More Remedies the Better?, 42 U.Chi.L.Rev. 1 (1974); Note, The Impact of De Facto Discrimination By Unions of the Availability of NLRB Bargaining Orders, 47 S.Cal.L.Rev. 1353 (1974); Comment, 7 Ga.L. Rev. 770 (1973); Comment, 58 Minn.L.Rev. 335 (1973).
. Specifically, Bell & Howell subpoenaed the following information:
1. Copies of all collective bargaining agreements to which Local 399 of the International Union of Operating Engineers (“IUOE”) (including its Branch Locals 399B and 399C) is a party on the date of the issuance of this subpoena or has been a party during the five-year period prior to the date of the issuance of this subpoena.
2. Copies of all petitions for representation elections filed by Local 399 of the IUOE (including its Branch Locals 399B and 399C) with the National Labor Relations Board during the five-year period prior to the date of the issuance of this subpoena.
3. Copies of all agreements, except for agreements described in Item 1 above, pursuant to or under which an employer recognized Local 399 of the IUOE (including its Branch Locals 399B and 399C) as the collective bargaining representative for said employer’s employees during the five-year period prior to the issuance of this subpoena.
4. Copies of all letters, correspondence, memoranda or other documents or records containing or relating to demands by Local 399 of the IUOE (including its Branch Locals 399B and 399C) for recognition as the collective bargaining representative for an employer’s employees during the five-year period prior to the date of the issuance of this subpoena.
5. Copies of all letters, correspondence, memoranda or other documents or records relating to claims, during the ten-year period prior to the date of the issuance of this subpoena, that work should be or should have been assigned to employees represented by Local 399 of the IUOE (including its Branch Locals 399B and 399C) rather than to other employees, or that work should be or should have been assigned to other employees rather than to employees represented by Local 399 of the IUOE (including its Branch Locals 399B and 399C).
6. Copies of all . letters, correspondence, memoranda or other documents or records relating to strikes during the ten-year period prior to the date of the issuance of this subpoena, involving members of Local 399 of the IUOE (including its Branch Locals 399B and 399C), or involving other employees at plants or other facilities where Local 399 of the IUOE (including its Branch Locals 399B and 399C) also represented employees at the time of said strikes.
7. Copies of all unfair labor practice charges which have been filed with the National Labor Relations Board against Local 399 of the IUOE (including its Branch Locals 399B and 399C) under Section 8(b)(4)(D) of the National Labor Relations Act during the ten-year period prior to the date of the issuance of this subpoena.
8. Copies of all letters, correspondence, memoranda or other documents or records relating to proceedings before the National Labor Relations Board involving Local 399 of the IUOE (including its Branch Locals 399B and 399C) under Section 10(k) of the National Labor Relations Act during the ten-year period prior to the date of the issuance of this subpoena.
9. Copies of all letters, correspondence, memoranda or other documents or records relating to any joint board, arbitration or other proceedings (except for NLRB proceedings described in item 8 above), during the ten year period prior to the date of the issuance of this subpoena, involving the adjustment of disputes whether work should be or should have been assigned to employees represented by said Local 399 of the IUOE (including its Branch Locals 399B and 399C) or to other employees.
10. Copies of all letters, correspondence, memoranda or other documents or records relating to apprenticeship, training or education programs which have been in effect during the five-year period prior to the date of the issuance of this subpoena for employees represented by or members of Local 399 of the IUOE (including its Branch Locals 399B and 399C).
Joint Appendix (J.A.) 44-45.
. Bell & Howell believed these documents were relevant to the Board’s
Mallinckrodt
factors.
See Mallinckrodt Chemical Works,
. The record was reopened to permit additional evidence on two of the Mallinckrodt factors:
(1) The history, practice and experience of Petitioner in representing the type of employees involved in the unit here petitioned for.
(2) The area and industry practice regarding the representation of the type of employees involved in the unit here petitioned for.
J.A. 48.
. 29 U.S.C. § 159(c)(1) (1976).
. Ordinarily, a decision to certify a union pursuant to § 9(c)(1) is not reviewable.
Boire
v.
Greyhound Corp.,
. Section 8(a)(5), 29 U.S.C. § 158(a)(5) (1976) provides, inter alia : “It shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees . . . .”
.. In this opinion we treat interchangeably the question of whether the NLRB may certify a discriminatory union and whether the Board may order an employer to bargain with a discriminatory union, once that union has been certified. This is appropriate because the obligation to bargain stems from the certification and the certification cannot be challenged except through a refusal to bargain. See note 6 supra.
.
.
See Craig v. Boren,
The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”
Id.
at 99,
. 29 U.S.C. § 160(f) (1976).
. The fact that the Board has entered an order against Bell & Howell may in itself be sufficient to confer standing on the employer. “When the Board enters a final order against the charged party, it is clear that the phrase ‘[a]ny person aggrieved’ in § 10(f) enables him to seek immediate review in the appropriate Court of Appeals.”
U. A. W. Local 283 v. Scofield,
. This issue is typically called the right to assert “constitutional jus tertii." See generally, Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962); Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423 (1974).
. In its reply brief to this court Bell & Howell raises for the first time the spectre of “interferfence] with [the employer’s] ability to satisfy his obligations under the myriad of federal and state equal employment opportunity statutes.” Reply Br. for Bell & Howell at 5. Bell & Howell does not specify how certification will interfere with its equal employment obligations, particularly in view of the fact that the union does not control the employer’s hiring through an exclusive referral system.
See
Br. for Bell & Howell in case No. 13-RC-13022, filed July 20, 1973 (challenging the hearing officer’s rulings). In its original brief, the employer relied on the fact that it was “aggrieved” by the order and urged that since the issue has been “vigorously and cogently argued,” the court should not wait for an employee challenge. Br. for Bell & Howell at 29 n.19,
citing Craig v. Boren,
. [L]imitations on a litigant’s assertion of jus tertii are not constitutionally mandated, but rather stem from a salutary “rule of self-restraint” designed to minimize unwarranted intervention into controversies where the applicable constitutional q lestions are ill-defined and speculative.
See, e. g., Barrows
v.
Jackson,
Craig v. Boren,
. Thus the rule against asserting third party’s constitutional rights has been relaxed when those rights would be “diluted or adversely affected” if the constitutional challenge should fail and the statute or policy remain in effect pending a challenge by one whose rights are affected.
Craig
v.
Boren,
. Remedies under the LMRA for breach of the statutory duty of fair representation are discussed at note 33 infra. Title VII, 42 U.S.C. § 2000e-2(c) (1976), prohibits a union from discriminating in its membership and prohibits any other form of discrimination that would deprive an employee of employment opportunities or otherwise affect an employee’s status. A union that violates these provisions may be enjoined and ordered to take appropriate remedial action. Such suits may be brought by the Equal Employment Opportunity Commission (EEOC) or by a person aggrieved by the union’s discriminatory practices. 42 U.S.C. § 2000e-5(f) and (g) (1976).
. Section 11194.3 of the NLRB Case Handling Manual, Pt. II, Representation Proceedings, Oct. 1975 (“Tests for granting or denying intervention”) provides, inter alia: “Motions to intervene made by ‘employees’ or ‘employees’ committees’ not purporting to be labor organizations, should be denied.” In contrast, any person may file an unfair labor practice charge. See NLRB, Rules & Regulations § 102.9, 29 C.F.R. § 102.9 (1977). The complainant is entitled to participate in the unfair labor practice proceeding as a party. Id. § 102.8.
. We need not decide whether an individual discriminated against by the union could bring an action in district court challenging the certification under
Leedom v. Kyne,
. The origin of the prudential doctrine of
jus tertii
is not altogether clear, but the first significant elaboration was not until
Tileston v. Ullman,
Only with
Barrows v. Jackson,
.
See, e. g., Barrows v. Jackson,
. 29 U.S.C. § 159(c)(1) (1976) (emphasis added). The provisions of § 9(c)(1) were added by the Taft-Hartley Amendments of 1947, 61 Stat. 143 (1947). The requirement that the Board “shall certify” election results was approved in both the House and Senate versions and was adopted without debate or comment.
Prior to 1947, the Board was given much broader discretion in'deciding whether to certify a union on the basis of election results. The Wagner Act, 49 Stat. 453 (1935) provided, inter alia:
“Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 10 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.” (Emphasis added.)
The decision to hold an election, and to utilize the results of such an election were discretionary with the Board.
See Inland Empire Council v. Miliis,
.
Great Atlantic and Pacific Tea Co.,
.
R & M Kaufmann v. NLRB,
. It is a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.”
Holy Trinity Church v. United States,
National Woodwork Manufacturers Ass'n v. NLRB,
. The legislative history is reviewed in
Lee-do.m v. Kyne,
. Professor Meitzer observes that claims of discrimination are likely to pose “complex and time consuming issues,” because in most instances Title VII has eliminated the more obvious and explicit forms of discrimination, such as discriminatory union constitutions or collective bargaining agreements. Meitzer, supra note I at 14.
. See Meitzer, supra note 1 at 15. Cf. M. Sovern, Legal Restraints of Racial Discrimination In Employment, Ch. 6 at 159 (1966).
. Plainly, national labor policy embodies the principles of nondiscrimination as a matter of highest priority,
Alexander v. Gardner-Denver Co.,
Emporium Capwell Co. v. Western Addition Community Organization,
In
NAACP v. FPC,
However, in prohibiting union discrimination or union induced employer discrimination, the Act clearly reflects a concern that unions not use their power of exclusive representation to shut individuals out of the workplace based upon race or sex. Thus, while not a dominant purpose of the LMRA, the Board’s role in com-batting union discrimination is far greater than the role assigned to the Federal Power Commission (now the Federal Energy Regulatory Commission).
. The Court first recognized the statutory duty of fair representation under the Railway Labor Act in
Steele v. Louisville & Nashville R. R.,
.
Syres v. Oil Workers Local 23,
. 29 U.S.C. §§ 158(b)(1)(A), (b)(2) and (b)(3) (1976).
See Miranda Fuel Co.,
. A union that violates the duty of fair representation may be decertified.
Hughes Tool Co.,
.
Vaca v. Sipes,
. Here, as in
Emporium Capwell,
we are asked to interpret the Act to provide “a right to short-circuit orderly, established processes for eliminating discrimination in employment . . . .”
. The Board’s powers are remedial, not punitive, and the Board may not justify an order solely on the ground that it will deter future violations of the Act.
Republic Steel Co. v. NLRB,
The Board has broad discretion to adapt its remedies to the needs of particular situations so that “the victims of discrimination” may be treated fairly. But the power of the Board “to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board’s authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act.”
Local 60, United Brotherhood of Carpenters v. NLRB,
.
Republic Steel,
. See Note, The Impact of De Facto Discrimination, supra note 1 at 1384 85.
. As Member Walther observed in
Murcel Manufacturing Co.,
231 N.L.R.B. No. 80,
[A]n 8(b)(1)(A) proceeding allows for the tailoring of a remedy to fit the nature of the discrimination found. The withholding of an otherwise appropriate 8(a)(5) remedial bargaining order is a relatively drastic remedy which completely precludes the establishment of a bargaining relationship.
Proceedings under Section 8(b), on the other hand, offer an opportunity to inject some remedial sensitivity into this area. In many situations a cease-and-desist order coupled with an affirmative make-whole obligation will provide a completely adequate remedy. In cases where the discrimination is more pervasive, a revocation of the union’s certification may well be the only appropriate remedy. The point is, however, that this flexibility can only be attained through an 8(b) proceeding.
In Murcel the Board declined to entertain allegations of union race and sex discrimination as a defense to a § 8(a)(5) charge against the employer.
. In
NLRB v. Sumter Plywood,
The approach in Sumter Plywood is not necessarily inconsistent with that which we adopt today, since we do not decide whether the Board could constitutionally exclude evidence that establishes the union’s intention to discriminate in the future in the unit for which the union seeks certification. See note 46, infra.
. This is the approach adopted by the Eighth Circuit in Mansion House. See note 1 supra.
. The Fifth Amendment proscribes discrimination at least insofar as the discrimination is “so unjustifiable as to be violative of due process.”
Bolling v. Sharpe,
. These sanctions apply not only to unions that are certified under § 9(c), but more generally to any union that is recognized as an exclusive bargaining representative.
See
—— of
. “Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents.”
Steele v. Louisville & Nashville R. R. Co.,
.
See Steele v. Louisville & Nashville R. R.,
. We do not decide at this time whether a different result is required where the union’s constitution or by-laws, or explicit conduct in a representation election, establish that the union will discriminate in the unit m question. See
Handy Andy.
My colleagues in the majority note that “we have and will continue to consider [in a representation proceeding] the impact of unlawful discrimination where such consideration is required to preserve the integrity of the Board’s own processes." To the instances which they cite, 1 would add yet another: instances in which it can be established through reference to a petitioner’s constitution, bylaws, or other written statement of policy, that the petitioner — not an affiliated organization or sister local — restricts access to membership on the basis of race, alienage, national origin, or sex. Should such discrimination be found, 1 would disqualify the petitioner from access to our election machinery until it can establish that the offensive practices have been eliminated.
See also Bell & Howell.
The Board has left open the possibility that in appropriate cases it can and will consider this evidence,
see Handy Andy,
Bell & Howell offered no evidence that “widowers” or “female employees” had or would in fact be denied such benefits discriminatorily (though such a showing would presumably be difficult if in fact the union has no female employees). It may be that the provisions of the benefit plans would be interpreted in a neutral fashion. In any event, the Board provides adequate opportunities to challenge these provisions after certification (as well as through the Civil Rights Act), if the union in fact discriminates in the provision of benefits.
. Specifically, Bell & Howell objects to
1) The Regional Director’s decision to limit the reopened hearing to two of the Mallinckrodt factors',
2) The Hearing Officer’s limitation of the cross-examination of Local 399’s President, Mr. Wren;
3) The Regional Director’s finding that producing a sample of Local 399’s contracts constituted sufficient compliance with Bell & Howell's subpoena.
Taken together. Bell & Howell argues that these rulings prevented it from producing relevant evidence in the representation proceeding and therefore denied it due process.
. In
Mallinckrodt.
1. Whether or not the proposed unit consists of a distinct and homogeneous group of skilled journeymen craftsmen performing the functions of their craft on a non repetitive basis, or of employees constituting a functionally distinct department, working in trades or occupations for which a tradition of separate representation exists.
2. The history of collective bargaining of the employees sought and at the plant involved, and at other plants of the employer, with emphasis on whether the existing patterns of bargaining are productive of stability in labor relations, and whether such stability will be unduly disrupted by the destruction of the existing patterns of representation.
3. The extent to which the employees in the proposed unit have established and maintained their separate identity during the period of inclusion in a broader unit, and the extent of their participation or lack of participation in the establishment and maintenance of the existing pattern of representation and *151 the prior opportunities, if any, afforded them to obtain separate representation.
4. The history and pattern of collective bargaining in the industry involved.
5. The degree of integration of the employer’s production processes, including the extent to which the continued normal operation of the production processes is dependent upon the performance of the assigned functions of the employees in the proposed unit.
6. The qualifications of the union seeking to “carve out” a separate unit, including that Union’s experience in representing employees like those involved in the severance action.
. See note 4, supra. Bell & Howell also sought to introduce evidence on the second factor listed in Mallinckrodt, see note 48, supra. That factor is plainly irrelevant where there is no history of bargaining on a broader basis. Bell & Howell implicitly recognizes this fact, and attempts to recast the second factor as “the effect which a separate unit would have on the stability of the employer’s industrial relations.” J.A. 53. This characterization misconceives the point of the Mallinckrodt factors, which are concerned with the harms and benefits of carving out a separate group as that decision affects employees, not employers.
. 3. The employer believes that the subpoenaed documents, together with the testimony of Petitioner’s President, Richard T. Wren, will prove that separate units of the type of employees involved in the unit here petitioned for are not the area and industry practice. Specifically, the Employer believes that the evidence will show that
(a) at some locations where Petitioner represents stationary engineers, the overall groups of powerhouse or boiler room employees are divided into two collective bargaining units, one represented by Petitioner and the other represented by Local 7, International Brotherhood of Firemen and Oilers.
(b) at some locations where Petitioner represents stationary engineers, the represented employees perform no work on air conditioning equipment, and this work is performed by employees represented by another labor organization or by unrepresented employees.
(c) at some locations where Petitioner represents stationary engineers, Petitioner also represents as part of the same unit employ:ees performing other maintenance functions.
J.A. 68 69. In his Decision and Direction of Election, the Regional Director observed (J.A. 76 77):
The Employer contends that the record is incomplete with regard to evidence bearing on Petitioner’s history, practice and experience in representing the type of employees in the unit sought; the area and industry practice regarding the representation of the type of employees in the unit sought; and the effect that a separate stationary engineers unit would have on the Employer’s industrial relations. On the basis of the entire record, it is the opinion of the undersigned, and I find that there is sufficient evidence in the record to make a determination appropriately taking into account the factors that the Employer suggests are missing.
Various types of employers employ stationary engineers represented by the Petitioner, to wit; a building managers association, a hotel association, individual laundries, shopping centers, office complexes, numerous industries, hospitals, and governmental units. 20 to 25 percent of Petitioner’s members are engaged in manufacturing of production concerns, the record indicates that duties Petitioner’s members perform at various laundry and manufacturing concerns are similar in nature to those duties performed by the employees in the unit sought. The record also indicates that employees performing duties similar in nature to those in the unit sought are represented by other unions on a plant-wide basis without adverse effects on industrial relations.
* -t. * * * *
Upon examining the record as a whole and weighing all relevant evidence and factors, I find that since the stationary engineers work in the boilerroom which is separated from the rest of the facility by a locked door, work 24 hours — 7 days a week regularly, are required to have experience and training, perform the same type of work often called “powerhouse” work, have separate seniority rights apart from the rest of the maintenance employees, have their own day to day supervisor, perform work in the boilerroom of a type which is rarely, if ever done by other *152 employees, spend a substantial period of time in the boilerroom apart from the maintenance and production workers, have their own locker and washroom facilities, generally have lunch away from other employees, and further since Petitioner represents and has represented employees performing similar duties in similar operations in the area, I find the stationary engineers to be an appropriate unit. . . .