*1 COMMUNITY WESTERN ADDITION
ORGANIZATION
NATIONAL LABOR RELATIONS BOARD, Respondent, Emporium Capwell Company,
Intervenor.
No. 71-1656. Appeals,
United States Court District of Columbia Circuit. May 25,
Argued
Decided June
fornia, pro vice, special hac leave of Steinman, Court, whom H. Edward Clara, Modjeska, Cal., and Lee M. Santa Valley, Cal., Mill on the brief for petitioner. *3 Atty.,
Stephen Yohay, National La- C. bor Relations Board of the bar of the York, Appeals pro Court of New hac vice, by special of Court with leave Mallet-Prevost, Marcel whom Gen. Asst. Abigail Counsel, Baskir, Cooley Atty., Board, National Labor Relations respondent. were on the for brief George Bahrs, Francisco, Cal., O. San on the for was intervenor. brief Slate, Atty., Equal Employ Martin I. Commission, Opportunity ment of the bar of the United States District Court Columbia, pro for the District of vice, by special Lac leave Court with Appellate Cooper, Chief, whom Julia P. Section, Equal Employment Opportunity Commission, Equal on the brief was for Employment Opportunity as Commission urging curiae reversal. amicus Before and Mac ROBINSON Judges, KINNON, Circuit District WYZANSKI* Senior United States dge of Massa Ju for the District chusetts. Judge:
MacKINNON, Circuit petition on the This case is before us Community Or- Addition Western ganization an order1 to review Board which National Labor Relations against complaint dismissed a issued Emporium (hereinafter referred alleged Company) violations as 8(a)(1) Labor of the National section Act, amended, 29 U.S.C. § Relations (hereinafter seq. referred to 151 et engaged Act).2 Company department operation of a retail Francisco, Cal., Hecht, Francisco, mem- and was a Kenneth San San store group, Supreme multi-employer the Re- of Cali- Court ber of a bar * practice by designation Sitting pursuant ía) to Title an unfair labor It shall be 294(d) (1970). employer— an Section 28 U.S.C. with, restrain, (1) interfere reported at 192 The Board’s decision is employees in the exercise of coerce (1971). LRRM 1669 NLRB No. rights guaranteed in section 158(a)(1) 8(a)(1), title. § Section 29 U.S.C. provides: Council, plaint of racial discrimination.”6 bar- but] tailer’s which served as its Council, thereafter, gaining Shortly agent. (Emphasis added.) The Retailer’s bargain- presented Re- signatory report to the his collective Johnson agreed Council, ing agreement Department where it with the tailer’s grievances (hereinafter Employees be taken di- that the should Union Store Union) repre- Accordingly, rectly Company. the exclusive which was Compa- Company’s mid-April met with the Johnson sentative marking manager ny it was employed areas labor relations stock agreed Company look applicable “would at the store. The what contained into” the situation and “see clause,3 provided could do.” anti-discrimination grievances agree- arising out of the re- May, ten *4 Adjust- “may to the ment be referred meeting quested with an additional Board,” possibly ment and submitted problem racial discrim- of Johnson. agreement con- also arbitration.5 The Young general Russel and the ination clauses. no-strike and no-lockout tained discussed; again particular case in Young meetings April early however, to be- about since was In a of series agreed gin vacation, 1968, group Company employees in- it was his a of summer investigation Joseph cluding of the matter and James that further Tom Hawkins repre- Sep- his about to the should await return. On Hollins submitted Union again grievances met the with which tember Johnson sentatives a list including Hol- employees employees, the Com- Hawkins and the pany contended that discriminating against lins, representatives of the racial and with was Employment Claiming Committee Practices that racial bias Fair minorities. Opportunity minority (FEPC) employees de- and the Economic had caused (EOC), that the employees the and promotions, the announced nied at Council spe- problem complaint and the Union had considered outset centered charged Company been employee cifically Russel that the had had concluded that Further, discriminatorily. Young acting the advancement been denied had Following demand an it would solely stated that because he was Union Black. Secretary-Trea- Adjustment proceeding and would meetings, Board Union necessary. designated upon Un- if arbitration a insist surer Walter Johnson allega- investigate acknowledging arbitration the that committee While ion time-consuming procedure, prepared John- a tions, that month was a and later employees’ outlining the report pointed out that arbitration the son award, detailed achieved, produce a . . once “raised . contentions which Young’s “long lasting bene- possibility solely com- which would effect” [not party settlement, provided: could either 3. reaeh The clause binding person upon 21(B), arbitration. shall be sist “No Section regard hire, against discriminated report 6. stated: This job employment or status tenure important Probably matter the most color, creed, race, national reason possibility of racial dis- was the raised origin, age or sex.” This is outlawed under crimination. agreement (B) agreement provided: and cer- the terms 4. Section day age tainly again “Any 5(B), should in this em- act of Section general problem. Union, ployer, It present any employee interfering feeling dis- that of almost all with that against agree- performance is directed crimination of this the faithful Negro more senior and the . . be referred ment . point is, senior, Adjustment employees, action as for such Board proper, age. Adjustment Board deems agreement.” permissive within this appended Decision, 7. Trial Examiner’s provided 192 NLRB No. decision after Board’s TXD) (hereinafter considering cited a submitted issue fot one week Adjustment Board was unable having fit not day’s previous meeting. imme- cussed at problem, diate interest in the but “other Johnson told the Council people involved in it” well.8 charge specifically Emporium We violations However, [the anti-discrimi- program outlined Agreement nation clause] be- satisfy Johnson did not all of the em- tween the Francisco ployees. San Retailers present Some of those ex- Council and We have pressed [the Union]. “frustration” with the situation approximately pages testimony, requested picket that the Union reporter recorded a court to sub- Company’s rejected store. Johnson position. stantiate our explained idea and the Union was grievances bound to seek proceed satisfaction of ready We are to immediate according to the terms of the Emporium agree- arbitration if the bargaining agreement. He also stated able.10 though he told response letter, to this October ployees, including Hollins, meeting Hawkins Adjust- was convened of the they ment his advice follow Board. Adjustment Board and arbitration Agent meeting began, As the Union procedures, they he attempted stated that “if want- Williams evidence practices Company’s by question- of ing ed to take other action could do *5 regarding employees their individual it as they do individuals and whatever grievances. However, interrupt- he was wanted as individuals.” and EOC who, speaking ed Hollins himself representatives FEPC also recommended employees,11 pre- and three read a other procedures that the contract be followed. pared objecting prose- statement to the gen- day The next Johnson wrote the grievances cution of on an individual ba- manager eral of the Retailer’s Council employees to sis. “speak did Those not want requesting meeting Adjustment of the individuals,” but would act grievances only Further, Board to group.” resolve the dis- “as a Hollins hearing 8. Johnson further at testified 11. The other were identified as Epps Washington. Hawkins, before the Trial Examiner: and process grievances e [W] wanted to problems Hawkins testified: and we there were that felt they e., my that [1. The sense was discrimination it was own and of personal something, feeling wanted to do but Union] all the that discrimina- they through procedure go tory processed wanted to that acts should be and counciling ought it through of this retailers [sic] we to take follow individually goiñg (A. 136). was it when care itof talking came we were still about when H» H* H* H* H* group my feeling matters. was certain acts had [I]t persons place everybody that would [I]t to take that individual in order say they something op- Emporium and on behalf at portunity have an would only job, would take it into consideration instead to have group positions (A. of a that we were talk- matter but advance into new ing 137). about. way proceeding v that Q. Was this ^ H« & H* specifically requested pointed to want the union seemed to follow I out acceptable you? No, going long A. wasn’t. to take a time in Why cases, they Q. not? A. Because we felt some of these but would well, only helping themselves, like if we talked individuals but they they only cases, people it, have a few could involved because we had satisfy Young, very feelings question (A. Like strong a few. Mr. really got 136-137). added.) (Emphasis he was the one that something deal, got pro- appendix out of he in this References to the 48-49). (Append, at motion. case. Hollins testified: Append, at 149. stay I said that we didn’t want meeting 10. TXD at 4. we didn’t feel like ployees picketed a. the store from 9:30 talk to “wanted stated that following distributing m., p. Emporium and m. to 6 President entering leaving else,” people anybody since handbill wouldn’t talk purpose talk to the store: their “main try to President to reach problems straighten out the him to with EMPORIUM BEWARE SHOPPERS Emporium.”13 of the and conditions BOYCOTT IS ON!!! refusing Then, give testi- after FOR YEARS THE AT EMPORIUM employees’ mony regarding individual BLACK, BROWN, YELLOW, AND complaints, out the four walked PEOPLE, RED AT HAVE WORKED meeting. meeting was A second held JOBS, AT LOW- THE LOWEST THE days later, Adjustment Board two EST LEVELS. TIME AND AGAIN none four attended.14 but WE SEEN INTELLIGENT HAVE Shortly thereafter, Hollins went to AND HARD BROTHERS WORKING Company president requesting that SISTERS DENIED PROMOTIONS [Hollins] “talk about a situation AND BASIC RESPECT. things felt about should be discussed THE EMPORIUM IS A 20TH CENTU- among minority happening that were RY THE COLONIAL PLANTATION Compa- store.” BROTHERS AND ARE SISTERS Hollins, ny president speak to would not BEING THE TREATED SAME WAY suggested he talk instead to but AS ARE OUR BROTHERS BEING Company’s personnel Hollins director. IN TREATED THE MINES SLAVE manag- personnel refused to talk OF SOUTH AFRICA. er, having previously spoken to him THE AT WHENEVER RACIST PIG about situation. THE OR EMPORIUM INJURES together Hollins, Hawkins HARMS A BLACK SISTER OR press employees, called a *6 several BROTHER, IN- THEY INJURE AND 22 which was conference on October SULT ALL BLACK PEOPLE. THE press, representatives attended EMPORIUM MUST PAY FOR THESE employees radio television. The THEREFORE, EN- INSULTS. WE engaging Emporium the was stated that COURAGE ALL TO OF OUR PEOPLE discriminating in racist against conduct TAKE THEIR MONEY OUT OF THIS the and that racial minorities STORE, RACIST UNTIL BLACK PEO- picket planning employees the were PLE HAVE FULL EMPLOYMENT a handbill also store. Hollins read AND ARE PROMOTED JUSTLY intended distribute which the THE THROUGHOUT EMPORIUM. public, further stated leafleting they planning “were on WE WELCOME THE SUPPORT OF [they] boycotting felt OUR the store because AND BROTHERS SISTERS being CHURCHES, UNION, not treated FROM THE were SO- RORITIES, fairly, minority FRATERNITIES, were SOCIAL being CLUBS, fairly as far treated as AFRO-AMERICAN INSTI- PARTY, TUTE, On concerned.”16 conditions BLACK PANTHER [sic] was following Saturday, November the W.A.C.O. AND THE POOR PEOPLE’S Hollins, other em- and two Hawkins INSTITUTE. Adjustment meeting 14. Board] the [of record unclear as to tran- what they spired really representing meeting. us because this
was The record does minority employees an in- take our case indicate that two wanted were' fighting promoted thing Company and we were dividual the fall of whole, picketing. an individual case. before the November 114). (Append, at TXD at 5. Append, 15/ at 121. Append, at 13. Append, at 82. picketing progress, complaint lins and was Hawkins. A was While the is- telling hearing spoke April 8, Hollins him and a with sued held on Johnson was fired that he did not to see Hollins 1969 before Trial Spencer. want Examiner William E. suggested only way petitioners to re- that the He found that had through engaged activity” solve the matter arbitration “concerted within agree- bargaining meaning Act,19 under of section they responded ment. Hollins that these actions had based been on presi- good Company company talk wanted to faith belief that actually discriminating against dent. racial minorities.20 The Trial Examiner next On November and Hawkins 7 Hollins examined whether concerted activi- Compa- were called ny’s the office protection by ties lost their virtue of the manager giv- of labor relations and boycott appeal and the invective used warning en a written to refrain from against Company. Though criti- he picketing possibly be fired.17 De- language, po- cized the and found “the warning, again spite picket- the two injury Company] tential [to ed the store and distributed leaflets considerable,” expressed he no conclu- following Saturday. Accordingly, on Finally, sion on this issue. he examined Monday, November Hollins and issue whether activ- concerted Hawkins were fired.18 The sub- Union protection ities lost their because sequently protest filed a with the Retail- disruptive were “inconsistent with and challenging discharges er’s Council procedures griev- settling of” the Hawkins, though Hollins and ances under the collective Union did not initiate ac- degree to such a tion. policies “would not effectuate the On November Western protection Act to extend its to such Community Organization Addition filed activities.”22 The Trial Examiner charge alleging with the N.L.R.B. Company unprotect- found had the activities violated section 8(a)(1) by discharging of the Act Hol- complaint ed and recommended that the warning message discharge 17. The slip : to Hollins read 18. The stated: 22,1968, you public being today. On October discharged issued a You Distri- press “Boycott Emporium” statement at a conference to which bution literature newspapers, radio, all Saturday, 9, 1968, and TV stations November in front *7 Emporium, were invited. Street, The contents of this state- 855 Market S. substantially F., warning ment pursuant the same as these to written dated set in forth the sheet attached. This for similar action on 11/7/68 11/2/68. statement was 2 broadcast on Channel (1970), pro 19. Section 29 U.S.C. 157 § October 1968 and KDIA. Station : vides you copies On November 2nd distributed Employees right have the shall to self- Negro of the attached to statement cus- organization, form, join, to or assist la- prospective customers, tomers and and to organizations, bargain collectively bor to persons passing by in front of through representatives of their own Emporium. choosing, engage and to in other concerted These statements are untrue and purpose activities for the of collective bar- will, injure intended to if and continued gaining protection, aid other mutual reputation Emporium. of The right and shall also have the to refrain ample legal There are remedies cor- to any except from or all of such activities you may rect discrimination claim right may to the extent that such be af- Therefore, your exist. we view activities requiring fected member- unjustified attempt as a deliberate and ship organization in a labor as a condition injure your employer. of in as authorized section you you may 158(a) (3) This is to inform of this title. discharged you repeat any of the above 20. TXD at 10. public acts or make similar statement. 21. Id. at 13. message given to Hawkins es- sentially identical. Id. at pect policy pro- of the national labor which that to He reasoned be dismissed. unequivocally rejects racial discrimina- conduct tect such g., employment. See, tion in e. New Ne- right seriously undermine gro Co., Sanitary Grocery Alliance v. bargain collectively employees 703, 82 S.Ct. L.Ed. U.S. through representatives of their own (1938). handicap prejudice choosing, and designated representa- employee’sduly aspect poli labor Another national bring about a du- tive in its efforts cy, certainly and a central tenet of working improvement in condi- rable structure, Act’s is set out section among belonging employees tions 9(a) provides representa that the place on the minorities, racial and bargaining tives of the unit “shall be Employer an unreasonable burden representatives exclusive for all self-designated attempting placate purposes in such unit for groups representatives of bargaining respect collective abiding by of valid the terms while bargaining agreement pay, wages, employ rates of hours attempting ment, employ or other conditions of (emphasis added).25 Recently, good whatever de- faith meet ment” bargaining representative mands the put Co., Mfg. N. R. B. v. Allis-Chalmers L. agreement.23 forth under 18 L.Ed.2d U.S. 87 S.Ct. rulings affirmed the (1967) The Board Supreme under Court Examiner, adopted his find- exclusivity Trial purpose scored the ings, conclusions, recommendations. 9(a): principle enunciated in section Two members dissented.24 policy National labor has built been premise by pooling on the their
I
through
strength
acting
economic
organization freely
protects
em
labor
chosen
7 of the Act
Section
discharge
engaging
majority,
ap-
ployees
of an
racially
propriate
protests against
employer’s
unit have the most effective
bargaining
improve-
discriminatory
means
practices.
B. v.
N. L. R.
wages, hours,
Livery, Ltd.,
ments in
Tanner Motor
349 F.2d
Mason-Rust,
policy
1965);
conditions. The
ex-
(9th
therefore
Cir.
tinguishes
(1969); Washington
employee’s
the individual
NLRB
State
power
Employees
to order his own relations with
Council No.
Service
State
(1970).
pro
power
his
and creates a
925 rights rep- employer. whom it and of those the There cannot be strict ” agreements applica- v. Louis- . Steele two more basic resents . . . given 192, unit; Co., ble virtually U.S. 202 workers in this is [65 N. ville & R. 173], 226, L.Ed. Thus conceded on all sides. If 232, 89 S.Ct. give may employer equally contract the em- union should fail to advantageous ployee’s and conditions of terms to nonmembers of terms organization provisions process- negotiating ployment the labor and agreement, immediately ing grievances; his the union would there bargain right away his to strike result a marked increase in bership mem- even during term, organization. his the contract and labor right hand, picket On the other to refuse to cross lawful better terms given may disagree nonmembers, employee with line. The were give strife, many is rise the union decisions but to bitterness arrangement wholly majority-rule “The bound them. unworkable today whereby comparable concept unquestionably performing is at the men paid according policy.” duties center of our federal labor to differ- complete wages “The of all who ent scales of ly then, satisfaction hours. Clear- hardly scale, represented expect- one are there must be basic range apply and must ed. wide reasonableness all. A statutory bargain- must be allowed a H.R.Rep.No.1147 Cong., S.1958, 74th serving ing representative unit Legislative 20, History 1st at Sess. II represents, subject always com- Act, of the National Labor Relations plete honesty pur- good faith and (N.L.R.B. 1949) Unequal at 3069. pose its discretion.” exercise treatment of members same bar- Huffman, Ford Motor U.S. Co. v. gaining only produce unit could bitter- 681, 686, 97 L.Ed. S.Ct. [73 ness, strife, and, ultimately, industrial 1048]. instability target prime at —a (1970). (foot- at Act 388 U.S. was aimed. U.S.C. S.Ct. § omitted). also, Additionally, *9 rights protected itself; end, by 7, it is to an a means section em making ployees engage activity, that end is the collective in concerted agreements stabilizing employment re- have limited been held to be somewhat by period though 9(a), of time, lations for a re- section boundaries advantageous by sults limitation no defi- both the worker means 926 produced Can, supra, and rea have not tionale of C. nite. cases R. concept orderly approach uniform to determine when soned that the collec bargaining minority promoted activity by only of em- could concerted tive employees
ployees
protection
7 if
of section
were held to have “an obli
loses
gation
exclusivity
go
the union
de
due to a conflict with the
with their
hiring.”27
provided
bargaining representative
non-discriminatory
sire for
analogous position
by
by
9(a).
approach has been An
has
taken
section
One
been
activity,
respect
protect minority
a number of
“wild
concerted
courts with
picketing, whenever
cat”
ity activity
such minor
such as
strikes which hold that
walkouts
derogation
po-
disruptive
the union’s
it is
is so
of collective
not
e.,
question,
bargaining
protect
i.
never be
sition on the matter
can
it
activity supports
v.
ed
when the concerted
section 7. Lee A. Consaul Co.
g.,
position
(9th
See,
B.,
union.
e.
N. L. R.
Cir.
taken
B.,
31, 47,
886,
9(a)
62
86 B.
316
S.Ct.
Interference
U.S.
with Section
(1942):
L.Ed. 1246
previously,32
As we noted
the exclusiv-
commis-
has
been
Board
[T]he
ity principle
9(a)
enunciated in section
policies
sioned to effectuate
premised
concept
of the Act was
on the
single-minded-
Act
Labor
so
Relations
majority
concept
This
rule.
—that
wholly ignore
ly
and
may
other
that it
what was best for the union
best
Congressional objec-
equally important
recognized
individual—
scope of
Frequently
tives.
the entire
proceed
could not
Congressional purpose
for care-
statutory
calls
where
bar-
factions within the
various
ful
one
accommodation
gaining
unit
con-
free to
too
another, and it is not
scheme to
flicting
unequal
or
the em-
an
demands to
much to demand of
administrative
body
ployer. Subjection
undertake this accommo-
that it
in-
the will of the
emphasis
dation without
excessive
majority
dividual to the
will of the
upon its
task.
immediate
Congress
preserve
the method
chose to
also,
Lincoln
See
v.
Textile Workers
stability
peace
mat-
industrial
over
and
Mills,
456-458,
448,
77 S.Ct.
353 U.S.
which
most
ters in
individuals would
(1958);
1
McLean
L.Ed.2d 972
cf.
disagree. However,
likely
on
issue
Trucking
States,
U.S.
v.
Co. United
to
of whether
racial discrimina-
tolerate
79-80,
64 S.Ct.
L.Ed.
employment
in a
tion in
the individuals
31
(1944)
;
v.Co.
Northern Natural Gas
disagree.
law
legally
union cannot
226-228,
C.,
U.S.App.D.C.
F. P.
give
option
tol-
to
union an
does not
Thus,
(1968).
399 F.2d
959-961
discrimination,
de-
but
erate some racial
recognized
the Board
light
have
should
discrimination
clares that all racial
activity in
VII,
concerted
Title
illegal.
§
U.S.C.
volving
quite
racial discrimination
activity.
Therefore,
(1970).33
under-
2000e-2
from other concerted
distinct
Go.,
Trucking
supra,
legislation
at
enacted
In Me
the Su-
hodied
Lean
dif
problems
preme
times and
Court stated:
with different
ferent
in view. When
true,
cannot,
continuous,
in-
this is
To secure the
close
pre
supervision
more, ignore
the latter. The
which enforcement
formed
without
make,
adjustments
legislative
requires,
frequently
must
mandates
cise
Congress
expert
however,
vary
in
instance
will
has vested
administrative
depending
the extent
to which
bodies such as the Interstate Commerce
stance
Congress
those
and has
a desire
have
Commission with broad discretion
indicates
implemented
charged
duty
policies
them
to execute
or
with
leavened
specific pro
specific
statutory
various
stated
enforcement
isolicies.
delegation
necessarily
legislation
with which
That
does
visions of the
directly
duty
authority
primarily and
con
clude either
or
Commission is
Thus,
Broadcasting
v.
Co.
execute numerous other
laws.
cerned. Cf. National
here,
power
States,
S.Ct.
[63
the Commission has no
319 U.S.
United
;
York
enforce the
Act
It can-
New
Central
1344]
Sherman
as such.
87 L.Ed.
States,
definitively
Corp.
not decide
whether
trans-
Securities
United
contemplated
138].
action
re-
77 L.Ed.
[53
constitutes
U.S.
S.Ct.
monop-
attempt
79-80,
straint
an
at
at 376-377
of trade or
321 U.S.
S.Ct.
(emphasis added).
olize which is forbidden
that Act.
The Commission’s task is
enforce the
leg-
part I, supra.
Act
Interstate Commerce
and other
32. See
specifically
deals
islation which
with
pro
transportation
problems.
2(a)
(1970)
33. 42
facilities
U.S.C. § 2000e —
legislation
That
immediate
:
constitutes
vides
(a)
employ-
frame of reference within
It
be an unlawful
which the Com-
shall
operates;
policies
practice
employer—
mission
ex-
ment
pressed
(1)
dis-
deter-
to fail
refuse
hire or to
in it must
the basic
charge
individual, or
minants
otherwise
of its action.
executing
policies
against
But in
those
the Com-
individual with
discriminate
respect
compensation,
terms,
overlapping
to his
con-
mission
he
with
faced
ditions,
privileges
employment,
policies
be-
times
inconsistent
lying premise
9(a)
First,
petitioners
of section
we note that
did not
subjected immediately proceed
will of
the individual must
to settle their dis-
pute
majority
will of the
does not au-
Company
over racial dis-
*12
racially
approval
own,
thorize the
crimination
discrim-
on their
utilized
but
inatory employment practices,
procedures provided
by
because
the collec-
bargaining
purposes
minority group
agreement
tive
and
for several
desiring
Thus,
the union in
to eradicate racial
quite
months.
different,
the situation was
employment
disruptive
in
cannot be
and less
discrimination
of collec-
activity
bargaining,
tive
Accordingly,
at odds.
concerted
than the one confronted
involving
by
Tanner, supra,
racial
involves
discrimination
Ninth Circuit in
major premise
attempt
where no
other factors than the
had been made to uti-
9(a).
that
lize
section
the union
underlies
or the con-
procedures
engaging
tract
before
in mi-
nority
activity.
agree
concerted
We
activity
While concerted
over
with Tanner
even
when racial is-
sig
actual racial discrimination differs
stake,
required
sues are at
one should be
nificantly
activity
from concerted
over
disputes
to submit such
to the un-
first
and
conditions
does
ion
minority
before one resorts to
con-
underlying premise
defeat
of section
activity.36
certed
Without
re-
such a
9(a),
recognize
nonetheless we
that such
quirement,
aggrieved by
parties
racially
activity
engaged
here
in
does
discriminatory
employment practices
terfere to a
extent with the
certain
would have little incentive
use the
bargaining process.
collective
In aban
grievance procedures
agreement,
doning
grievance procedures
34
certainly
policy
national labor
fa-
seeking
bargain
own, the
on their
grievance-arbitration
vors the
use
picketers
essentially
here
inef
rendered
see,
procedures
disputes,
to settle labor
griev
remedying
fective the method of
g., Boys
e.
Inc. v. Retail Clerks
Markets
bargain
by
chosen
ances
collective
Union,
235, 242-243,
398 U.S.
90 S.Ct.
ing representative
provided by
(1970), even when
1583,
terest day’s previous ances discussed at explained As involved it” as he well. meeting, asserting, inter alia: hearing: at the specifically charge Emporium We griev- process wanted to these [W]e 5(B) with violations Section ances and felt there we Agreement 21(E) of between the problems of and it was discrimination Francisco Union], Council and San Retailers feeling personal my that all the own approximately have [the We discriminatory proc- acts should pages testimony, recorded ought that we follow essed and reporter po- our to substantiate court through and take care of it. sition. because we was a meeting on the and However, time in some of selves, I I to advance into new out that portunity to take [I]t (cid:127)X- # # came specifically it had to be taken would not serious situation but *17 question. Emporium place [*] [*] [*] to the conclusion after we had my had feeling in order that -X- [*] [*] only requested program going people very would have an to have a positions. [*] [*] [*] April care certain acts to take a strong feelings cases, involved helping outlined of. -X* # [*] that everybody developed but job, pointed them- [*] [*] n [*] there long had but op- it, than a statement ing employees regarding their individual Williams Epps for himself and ed Hollins position grievances. consultation with October 16. As the We are arbitration if the by response grievances Adjustment [*] and four Company’s practices by question- group attempted ready meeting Washington, [*] objecting to this However, he was presentation Accordingly, who, on an individual rather basis [*] Board counsel proceed to employees Hawkins, began, acting letter, Emporium ready. to the would not [*] read a to the Board. Union the Union stating prepared convened on prosecution meeting spokesman immediate interrupt- prepared evidence “speak Agent [*] its individuals,” only satisfy did all of the but act “as a Johnson not em- would ployees group.” Further, ; thus, Hollins stated that some of those ex- pressed group with situation “wanted to talk to the Presi- “frustration” proposed picket Emporium that the Union dent of the and wouldn’t talk Company’s rejected anybody else,” pur- “main since their store. Johnson exchange try pose Hollins ex- President to idea and in an with was to talk to the him with to reach straighten BEWARE EMPORIUM SHOPPERS problems condi- out the BOYCOTT ON!!! IS Emporium.” Then, after tions of the FOR testimony regard- AT refusing give any YEARS THE EMPORIUM YELLOW, BROWN, complaints, BLACK, employees’ AND ing . individual Washington PEOPLE, Hollins, Hawkins, RED AT HAVE WORKED Epps, and meeting. JOBS, THE LOWEST THE LOW- AT walked out EST TIME AND LEVELS. AGAIN meeting Adjustment of the A second WE HAVE SEEN INTELLIGENT none held on Board was October but HARD AND WORKING BROTHERS attended. of four SISTERS DENIED PROMOTIONS transpired record is unclear as what AND BASIC RESPECT. meeting; however, did at the Hawkins acknowledge testimony THE at EMPORIUM A IS 20TH CENTU- his through RY hearing COLONIAL THE PLANTATION in this case that Young intervention, was AND ARE Russel BROTHERS Union’s SISTERS promoted position BEING TREATED THE of First Assist- SAME WAY AS Manager, Fata, em- OUR ARE another BROTHERS BEING ant supervi- promoted TREATED IN THE also SLAVE MINES ployee, was OF position. sory SOUTH AFRICA.
Thereafter, the WHENEVER AT in accordance with THE RACIST PIG intentions, THE group’s Hollins went EMPORIUM OR stated INJURES Company HARMS A insist- President Batchelder BLACK OR SISTER BROTHER, ing THEY INJURE AND IN- “talk about situation SULT ALL BLACK THE felt be discussed PEOPLE. should [Hollins] things happening EMPORIUM that employees PAY FOR THESE about among were MUST THEREFORE, INSULTS. EN- WE store.” speak Hollins COURAGE ALL OUR PEOPLE TO OF Batchelder suggested TAKE THEIR Hollins discuss MONEY OUT OF THIS but Compa- Henderson, RACIST STORE UNTIL BLACK PEO- situation with personnel PLE ny’s refused. HAVE EMPLOYMENT director. Hollins FULL AND ARE PROMOTED JUSTLY Hollins, Hawkins and On October THE THROUGHOUT EMPORIUM. employees, together with several other press WE OF WELCOME THE called a conference at Sun-Re- SUPPORT porter Building which OUR AND Francisco BROTHERS SISTERS San CHURCHES, representatives THE SO- UNION, attended FROM was press, RORITIES, FRATERNITIES, SOCIAL radio and television. Emporium CLUBS, ployees was AFRO-AMERICAN INSTI- stated that PARTY, engaging TUTE, discrimi- BLACK PANTHER in racist conduct nating against C.O. THE racial minorities and that W.A. AND POOR PEOPLE’S planning picket INSTITUTE. the contents the store. Hollins also read progress, picketing While the group intended a handbill which the told he did Johnson Hollins that (see below) public distribute want to him fired and that see objective “to and stated try through way to the matter was resolve get top management to to talk to the ignored Johnson’s arbitration.' Hollins Emporium.” for the better conditions suggestion again that “the stated *18 they to talk to was Mr. one wanted following Saturday, Then, No- on Batchelder.” Hawkins, employees Hollins, vember Washington picketed Hawkins Epps store November On Hollins and distributing p.m., of Paul Ehren- were called the office a.m. to 9:30 entering following manager people relations, fried, of labor handbill to given warning which leaving a formal written the store: or right exclusivity respect representation of of stated follows with as upon by press conferred union Sections October 22 conference of of the Act. That and 9 dismissal of November 2: handbill petition subject court of the filed in this untrue and are are statements These Organ- Community Addition Western if will continued intended to and ization. jure reputation Emporium. of the question present- Essentially the here legal ample are remedies to cor- There ed in a is whether after the you any may claim rect discrimination bargaining a unit have selected your Therefore, view ac- to exist. we representative in accordance of with § unjustified tivities a deliberate and as minority are the NLR Act in a those attempt injure your employer. bargain con- free with their you you may This is to inform cerning alleged class racial conditions of discharged repeat you of discrimination within that As the unit. public above acts make similar ensuing attempts indicates, discussion statements. issue avoid thrust of that the direct following Saturday, Nevertheless, on the be, case, seem to this exercis- at least again and Hawkins November Hollins postponement. futility es es- picketed Emporium distributed question properly evad- sential cannot be substantially those leaflets identical with escaped pretending ed or here previous distributed the week. griev- dealing we are with individual Monday, Accordingly, on November single employees ances of than rather called to 11, Hollins and Hawkins were a of em- conditions of discharged. office and were Ehrenfried’s ployees, or that here a we have discharge slip given Each was a acting of who are not in dero- bore the notation: gation authority of their union of the discharged being today. Dis- representative. requires You are What case “Boycott Emporium” lit- tribution of whether, this court to face is in the Saturday, light on special aspects prob- erature November Emporium, 855 discrimination, in front of the potential lem of racial S.F., pursuant to writ- generalities Market Street, which both the Unit- warning ten dated similar specifies ed States Constitution and the 11/7/68 Rights action on of such Acts Title Civil as VII 11/2/68. Rights the Civil Act of 42 U.S.C. § protest subsequently a The Union filed seq., addressed, is cre- 2000e et there the dis- with the Retailer’s Council exception ated an usual rule charge of Hawkins and Hollins. exclusivity rights con- November Addition 1968 Western upon ferred the NLR Act a union se- acting Community Organization, by majority employees in an lected a Hollins, filed Hawkins and appropriate initially presents This unit. charge Emporium vio- NLRB had a statutory a matter construction by discharging lated them for NLR Act Act, although, NLR if that is not re- engaging statutorily-protected con- favorably petitioner, solved there activities, certed and that those dis- background possible ques- lurks prac- charges constituted unfair labor purports tion to whether as it insofar meaning within the tices Section give by a selected 8(a) (1) of the Act. The NLRB issued majority power mi- athwart a stand hearing complaint. After before right nority’s to seek racial claim to the Examiner, NLRB Trial recommended he non-discriminatory. conditions, NLR review, complaint. dismissal of the On Fifth, Thirteenth, and Act violates the complaint, the Board sole- dismissed the to the United Fifteenth Amendments ly ground on the activities of Constitution, then inasmuch as protected States Hollins and Hawkins were derogation regarded might perpetuat- because the Act *19 get slavery, ing the consequences but- and Hawkins took to lins the change deny- ployer policies. It tressing discrimination, to its be and racial ing that the record does not show that the process law. due interposed Yet union a firm veto. we In bar as viewed case at facts the the unsophisticated ap- so not to are not as plain by it Hollins make that the NLRB why preciate not this evidence is and sought present to and Hawkins management to probably never would be available. We Emporium per- their not recognize that the union could have rea- grievances, individu- sonal such as might pro- which it sons not choose due under al to be accorded their failure housetops why from it did not claim bargaining agreement, or the collective anything approaching what it want might wholly adjustment such of some as the regard policy a complaint. two those individual What on measures based affirmative manage- change in men wanted was a achieve racial balance. Whether Hollins hiring, policies promoting, and in ment’s goals and had ultimate af- Hawkins treating workers that class of otherwise quotas blacks, or firmative some in the unit who were not white within achieving Emporium in the method Liv- NLRB v. Tanner Motor Cf. color. corresponding a racial store balance Ltd., Cir., ery, 9th F. by judicial provided the racial balance Sterling 218; Prod- Brown v. Aluminum remedy public aas in certain decrees Cir., Corp., F.2d ucts 8th cases, employment and in certain school plainer in- 657. There could not abe no secret it is that what here bargain attempt respect- stance of an sought derogation of would -be in distinguished ing working conditions, as ways. in union at least most two grievances. adjustment way represent politi- a obvious would it validly Nor can it claimed that be victory for cal Hollins and Hawkins Hollins and Hawkins were this record to, certainly which would not add and al- derogation acting union not representative of the surely po- from, most detract majority, by selected appeal litical union offi- of the acting supplement, but rather were representa- cers at the next election of ap- support, explicit and make more by tives unit; the relevant contract plication, which, long and before elec- negotiated by union theretofore representative. tion, would from the union’s detract contract, sure, To be glamor. important, if More Hollins negotiated, provided theretofore employer Hawkins succeed in their efforts have racial- should discriminate change employer policies its some ly. fairly glit- construed, However, employed others who whites now tering generality according was, might employed potential los- be will be necessary, contract, vindicated, to be promoted If a black man ers. is by specific complaints procedure of hired, white inevitable that a will by representative made union promoted same or hired for the grievance through presented him job. act- Thus Hollins and Hawkins are machinery. union arbitral This the ing derogation union, its con- saw, them- clearly and its officials were tract, many of its members. unwilling press quite selves disposed of Yet this case not to on the to concede broad assault by uncovering merely bones and bare its adopt on some basis that should ripping it has the veils off hiring promoting policy different pretense wrapped, is, been persons. is a shade colored While there change not an this is effort ambiguity attitude as to the union’s unit, further and the conditions having toward such an assault made pretense dero- is not effort Hawkins, neither union Hollins and gation encouraged steps selected nor Hol- welcomed *20 that, by majority 9 is as shown Title VII of accordance with Section a recognize Rights 1964, 42 Civil Act of must U.S.C. of the NLR Act. We § except superficial- seq., by not, such as 2000e et Griggs cases is most this that ly, analogous Co., 1971, minori- Duke Power 401 U. a a v. case wherein to 158, seeks, 849, appropriate 424, S. L.Ed.2d ty unit S.Ct. within part policy, representa- is our national declared of the consent without get merely Congress, by majority, dif- of that an to Acts a tive selected employer prejudice Cox, (See shall avoid the inher Archibald wages, ferent by discriminating negatively Engage ent in fusing Activi- re Right To Concerted promote persons, hire or ties, (1951) black Indiana Law Journal employer but 320), more that an shall take affirma to reach or seeks steps persons representative quickly has tive assure that black than the equality employ Draper Corp., opportunity (Cf. 4th of done, v. have NLRB 989; promotions. 199, ment and Cir., 1944, See Castro v. F.2d 156 A.L.R. Beecher, D.Mass.1971, Minerals, Inc., Cir., F.Supp. 9th NLRB Sunset Cir., 224,) by with or same aff’d. modifications 1st 211 F.2d seeks expressed 1972, particularly acquiescence, 459 F.2d with the results opinions implied, selected the District Court on re mand, April by majority, (Cf. v. R. Can The NLR Act NLRB C. 1973. contemplates Co., Cir., 1964, that the NLRB and all oth F.2d 974-978- 5th or, purely hypothetical- 979), say, ers concerned with the Act shall enforce let us together working policy policy get condi- ly, better seeks against organi- non-discrimination on fraternal tions for members of a legitimate zation, promotion account of their quicker union activi for workers graduated implication ties. This is the fair who from institu- have been Steamship NLRB, 1942, education, Southern or even Co. v. tions of advanced unit 316 U.S. in the S.Ct. L.Ed. claims skilled workers ought differently un- treated from There ais second and more subtle rea- Gould, skilled B. workers. See William why complaint son a racial must be And ‘Wild- Status Unauthorized upon differently looked from run- cat’ The National Labor Strikes Under complaints of-the-mill minori- made L.Q. (1967) Relations 52 Cornell Act wages everything ties as drinking from minority fountains. When consists non-whites who seek á What case involves is racial is- this regard equality themselves what are, society in our sue. Racial issues opportunity, expected is to because of the United Constitu- States position is, to, their not hostile or at tion, history, traditions because uncongenial to, certainly fully least aspirations people, of our and be- by, majority shared a of whites legislation Congress, cause of same unit. Even if we assume that the particularly most Title the Civil VII of nay tolerant, generous, whites Rights 1964, 42 Act of 2000e et U.S.C. § short-term in conflict with interest is seq., quite category a different from non- the short-term interest of presented other issues phi- Nothing except perhaps a whites. — representa- a unit which has selected a long-term losophy upon founded inter- tive Act. accordance with 9 of the § ests—can basic conflict. eliminate that trivial, essentially justice first, A no rea- means Hence it denial why union, majority employer, son to have the allow the white Board, required power preclude NLR the non-whites we are dealing directly differently complaint ra- treat to a with the issues, in dis- condition with racial cial whether or not character *21 opinion said, rights union Mr. Justice in paragement of the Stone’s Vir- of the ginian Railway case, just cited, incorpo- Rawls, A representative. See John University great specificity Justice, rated into Theory the Harvard Railway 548, 228-234; pp. Isaiah Labor Act. See (1971) 300 U.S. Sir Press Berlin, 6, 592, Liberty, Concepts Oxford footnote S.Ct. Chief 57 Mr. Two Hughes’ opinion (1958), pp. Justice in National La- University Press Clarendon Laughlin 9-14, bor Board Relations v. Jones & 48-57. 1937, 44, 615, 1, Co., 301 U.S. 57 S.Ct. it nec- conflict makes inevitable This 893, incorporated 81 L.Ed. with some- legislation essary so to construe either generality what more into the National or, injustice, in obvious as to avoid an Labor Relations Act. construction up resort, if such the last (as discerning the ulti- permissible, What is undeniable to face the spir- opinion Judge question of Circuit John R. Brown mate Constitutional Cir., Co., 1964, in NLRB v. R. C. Can perceptively in the now adumbrated it so 974, 979, joined States United 328 F.2d fourth footnote in in Circuit classic 1938, Co., Judge U.S. Tuttle, emphasizes, Elmer Products and as v. Carolene 778, Sipes, 1967, 171, L.Ed. 144, 152-153, S.Ct. Vaca v. 386 U.S. S. 903, Ct. 17 L.Ed. and Note Individu al Control Over Personal Grievances un insuper Fortunately, there is no here Sipes, der Vaca v. Yale L.J. 559 difficulty construing NLR the able recognize) (1968) seem to is that the (despite permit minority, Act a Act, draftsmen of the NLR those who by majority a previous a selection championed argument it in before the representative which of the unit Supreme Court, and court itself had despite a minority employed, and their focus on the chaos would oc rep bargain by that executed cur, the breakdown of the union’s au employer) bar resentative and thority, predicament unfortunate gain directly re with the employer, likely an harassed and the gard which affect to racial issues peace of industrial breach which would way minority from different every group occur dissident of work majority. way they metic A affect the appropriate ers in unit free history reading NLR of the ulous of the negotiate all the terms of own work its When, point Act makes evident. ing employer. conditions with How Stanley General, the Honorable Solicitor ever, original no one associated with the Supreme argued Court Reed before Wagner legislative de Act cases or the constitutional, he the NLR Act was preceding adoption bates NLR giving object sought explain had Act his attention called to a racial representative. exclusivity See or kindred term where Cong., Document Sess., 75th 1st Senate inevitable that the interests Arguments Aris The No. Cases majority and of ing Railway Labor Act And Under The statutorily , would to a be adverse — Be Act Labor Relations National say, protected constitutionally ,— Supreme United Court fore The minority claim aof or dissident February pp. States, 8-11, 37-38. Donnelly or individual. See United v. point, the same He had made somewhat Co., 1963, 40 Fruit N.J. A.2d precisely, week in earlier more 825; Hain, Black White Workers Versus filed in 35a in the brief he had footnote Wayne etc., (1969). Unions L.Rev. 37 Virginian System Railway Feder Co. prem- Verbally, and, 40, 1937, ation 536- from one set of No. 300 U.S. well, say “logically” com ises, 57 S.Ct. 81 L.Ed. one reasoning cognate precludes minority panion involving case Rail wages way normal Labor Mr. Reed’s brief from about Act. What precludes justice conditions elementary also unnecessary it is minority bargaining about racial this court to consider whether if the argument pro- deny» But that minority discrimination. statute did the non-white implied premise right from an ceeds Con- issues which have a gress when it used all-inclusive lan- hue, applied non-white the NLR Act as exclusivity guage forth in repugnant set Sec- really Fifth, Thirteenth, tions 8 and 9 of the NLR Act or Fifteenth *22 plain meant fact all-inclusive. The Amendments to the United Con- States of matter is not a shred is that there stitution. of evidence to draftsmen show points Some miscellaneous should be Act, sponsors, legislators its concluding. answered before it, who the President who enacted signed it, lawyers argued it, who is, course, question There no or the Justices sustained ever who by the issues tendered Hawkins and Hol- contemplated presented issue “working lins related to conditions” as e., ease at whether NLR Act bar: i. 7, 9, that term is used in 8, Sections and gives majority power to a white parts Act. NLR foreclose a non-white Therefore, “exclusivity” unless the presenting spe- to their those doctrine way, stood in the Hawkins and respect cial issues which arise with statutorily-protected right Hollins had a of non-whites. It can- picket in order to their claim fairly supposed by implica- not respect alleged discrimination tion, language general the use of against non-whites. This was indeed admittedly comprehensive nature, of an specifically recognized by the Court of Congress deny intended to the non- Appeals for the Ninth Circuit thoughtful persons stage
whites what
must
first
Ltd.,
of NLRB v. Tanner Motor
Cir., 1965,
1,
9th
elementary justice.
349 F.2d
al-
concede is
though,
course,
stage
second
TO LEAVE
THE
NON-WHITES AT
case,
the same
NLRB v. Tanner Motor
MERCY OF
IN THE PRE-
WHITES
1969,
Ltd.,
216,
9th Cir.,
419 F.2d
SENTATION
OF
NON-WHITE
Ninth Circuit has reached a conclusion
CLAIMS WHICH ARE ADMITTEDLY
diametrically opposed to
one
set
ADVERSE TO THE
WOULD
WHITES
opinion.
forth in this
BE A
OF
MOCKERY
DEMOCRACY.
SUPPRESSION,
INTENTIONAL OR
properly
In this case there is not
be-
OTHERWISE, OF THE PRESENTA-
Appeals any ques-
fore us
a as Court of
TION OF
CLAIMS CAN-
NON-WHITE
signs,
tion as to
language,
whether the
NOT BE TOLERATED IN OUR SOCI-
Hawkins, Hollins,
like utterances
IF,
ETY EVEN
WHICH IS PROBA-
and their associates
to de-
were such as
BLY AT
THE
LEAST
SHORT-TERM
prive
statutory privilege
them of a
THE
IS
CONSEQUENCE,
RESULT
against discriminatory
action
their
THAT
PEACE IS TEM-
INDUSTRIAL
employer.
itself,
(though
The NLRB
PORARILY
AFFECT-
ADVERSELY
IN
examiner),
ED.
NON-WHITE
its trial
PRESENTING
refrained from
CANNOT,
ISSUES NON-WHITES
comment on those
utterances.
WILL,
THEIR
BE RELE-
AGAINST
board,
short,
did not refuse to issue a
SPOKESMEN,
GATED TO WHITE
against
complaint
Emporium
THE
MIMICKING BLACK MEN.
ground related to the
utterances
DAY OF THE MINSTREL SHOW IS
are,
Hawkins and Hollins. We
there-
OVER.
fore,
upon
not called
to decide whether
Inasmuch as the NLR Act lends itself we think such
fall
utterances
within the
a to construction
denial
which avoids the
doctrines of NLRB v. Local Union No.
464, 472,
1229, 1953, 346
74 S.Ct.
U.S.
Sargent
172,
ize rule
permissible arrogate unto be would preliminary fact-finding and ourselves
law-determining function Con- gress and not entrusted to the Board has Nothing non-expert said to our hands. however,
herein, as is to be construed vulgarities indicating approval of the exaggeration utterance
Hawkins, To and their Hollins fellows. Billingsgate sure, such be those who use le- on that account to denied fitting gal Nonetheless, relief. it is represented remind
the court to those interests,
petitioner that their well employer and, more interests society
important, of democratic favor discussion,
rational and not abusive
temperate name-calling. Those who seek understanding do tolerance practice
towell it. view, my order the NLRB’s should aside, Board be directed
be set and the proceedings conformi-
to take further nothing ty opinion. I see with this distinguished gained by a broad as directory narrow, un- remand commanding equivocally the NLRB to
grant sought by complaint. the relief way avoiding possible
I no see exclusivity challenge
head-on
principle incon- involved in the which is delayed jus- Justice,
trovertible facts.
tice denied.
notes
I.
See
J.
Case
cases have noted
Board,
exclusivity
bargaining repre-
Labor
of the
321 U.S.
S.Ct.
(1944).
preserve
helps
orderly