A union, after investigating complaints that the company with
which it had a collective bargaining agreement was racially
discriminating against employees, invoked the contract grievance
procedure by demanding that the joint union-management Adjustment
Board be convened "to hear the entire case." Certain employees who
felt that procedure inadequate refused to participate, and, against
the union's advice, picketed the company's store. The company,
after warning the employees, fired them on their resumption of
picketing, whereupon a local civil rights association to which the
fired employees belonged (hereinafter respondent) filed charges
against the company with the National Labor Relations Board (NLRB)
under § 8(a)(1) of the National Labor Relations Act (NLRA), which
makes it an unfair labor practice for an employer to interfere with
an employee's right under § 7 to engage in concerted action "for
the purpose of collective bargaining or other mutual aid or
protection." The NLRB found that the employees were discharged for
attempting to bargain with the company over the terms and
conditions of employment as they affected racial minorities, and
held that they could not circumvent their elected representative's
efforts to engage in such bargaining. On respondent's petition for
review, the Court of Appeals reversed and remanded, concluding that
concerted activity against racial discrimination enjoys a "unique
status" under the NLRA and Title VII of the Civil Rights Act of
1964; that the NLRB
"should inquire, in cases such as this, whether the union was
actually remedying the discrimination to the fullest extent
possible, by the most expedient and efficacious means,"
and that, "[w]here the union's efforts fall short of this high
standard, the minority group's concerted activities cannot lose
[their] section 7 protection."
Held: Though national labor policy accords the highest
priority to nondiscriminatory employment
Page 420 U. S. 51
practices, the NLRA does not protect concerted activity by
minority employees to bargain with their employer over issues of
employment discrimination, thus bypassing their exclusive
bargaining representative. Pp.
420 U. S.
60-70.
(a) The NLRA in § 9(a) recognizes the principle of exclusive
representation, which is tempered by safeguards for the protection
of minority interests, and, in establishing this regime of majority
rule, Congress sought to secure to all members of the collective
bargaining unit the benefits of their collective strength in full
awareness that the superior strength of some individuals or groups
might be subordinated to the majority interest. Pp.
420 U. S.
61-65.
(b) Separate bargaining is not essential to eliminate
discriminatory employment practices, and may well have the opposite
effect. Here, the grievance procedure of the collective bargaining
agreement was directed precisely at determining whether such
practices had occurred. Pp.
420 U. S.
65-70.
(c) If the discharges here involved violate Title VII, its
remedial provisions are available to the discharged employees, but
it does not follow that the discharges also violated § 8(a)(1) of
the NLRA. Pp.
420 U. S.
70-72.
158 U.S. App. D.C. 13, 485 F.2d 917, reversed.
MARSHALL, J., wrote the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
420 U. S.
73.
Page 420 U. S. 52
Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR.
CHIEF JUSTICE BURGER.
This litigation presents the question whether, in light of the
national policy against racial discrimination in employment, the
National Labor Relations Act protects concerted activity by a group
of minority employees to bargain with their employer over issues of
employment discrimination. The National Labor Relations Board held
that the employees could not circumvent their elected
representative to engage in such bargaining. The Court of Appeals
for the District of Columbia Circuit reversed and remanded, holding
that, in certain circumstances, the activity would be protected.
158 U.S.App.D.C. 138, 485 F.2d 917. Because of the importance of
the issue to the administration of the Act, we granted certiorari.
415 U.S. 913. We now reverse.
I
The Emporium Capwell Co. (Company) operates a department store
in San Francisco. At all times relevant to this litigation, it was
a party to the collective bargaining agreement negotiated by the
San Francisco Retailer's Council, of which it was a member, and
the
Page 420 U. S. 53
Department Store Employees Union (Union) which represented all
stock and marking area employees of the Company. The agreement, in
which the Union was recognized as the sole collective bargaining
agency for all covered employees, prohibited employment
discrimination by reason of race, color, creed, national origin,
age, or sex, as well as union activity. It had a no-strike or
lockout clause, and it established grievance and arbitration
machinery for processing any claimed violation of the contract,
including a violation of the antidiscrimination clause. [
Footnote 1]
On April 3, 1968, a group of Company employees covered by the
agreement met with the secretary-treasurer of the Union, Walter
Johnson, to present a list of grievances, including a claim that
the Company was discriminating on the basis of race in making
assignments and promotions. The Union official agreed to take
certain of the grievances and to investigate the charge of racial
discrimination. He appointed an investigating committee and
prepared a report on the employees' grievances, which he submitted
to the Retailer's Council and which the Council in turn referred to
the Company. The report described "the possibility of racial
discrimination" as perhaps the most important issue raised by the
employees, and termed the situation at the Company as
Page 420 U. S. 54
potentially explosive if corrective action were not taken. It
offered as an example of the problem the Company's failure to
promote a Negro stock employee regarded by other employees as an
outstanding candidate but a victim of racial discrimination.
Shortly after receiving the report, the Company's labor
relations director met with Union representatives and agreed to
"look into the matter" of discrimination and see what needed to be
done. Apparently unsatisfied with these representations, the Union
held a meeting in September attended by Union officials, Company
employees, and representatives of the California Fair Employment
Practices Committee (FEPC) and the local antipoverty agency. The
secretary-treasurer of the Union announced that the Union had
concluded that the Company was discriminating, and that it would
process every such grievance through to arbitration if necessary.
Testimony about the Company's practices was taken and transcribed
by a court reporter, and, the next day, the Union notified the
Company of its formal charge and demanded that the joint
union-management Adjustment Board be convened "to hear the entire
case."
At the September meeting, some of the Company's employees had
expressed their view that the contract procedures were inadequate
to handle a systemic grievance of this sort; they suggested that
the Union instead begin picketing the store in protest. Johnson
explained that the collective agreement bound the Union to its
processes and expressed his view that successful grievants would be
helping not only themselves, but all others who might be the
victims of invidious discrimination as well. The FEPC and
antipoverty agency representatives offered the same advice.
Nonetheless, when the Adjustment Board meeting convened on October
16, James Joseph Hollins, Tom Hawkins, and two other employees
whose
Page 420 U. S. 55
testimony the union had intended to elicit refused to
participate in the grievance procedure. Instead, Hollins read a
statement objecting to reliance on correction of individual
inequities as an approach to the problem of discrimination at the
store and demanding that the president of the Company meet with the
four protestants to work out a broader agreement for dealing with
the issue as they saw it. The four employees then walked out of the
hearing.
Hollins attempted to discuss the question of racial
discrimination with the Company president shortly after the
incidents of October 16. The president refused to be drawn into
such a discussion, but suggested to Hollins that he see the
personnel director about the matter. Hollins, who had spoken to the
personnel director before, made no effort to do so again. Rather,
he and Hawkins and several other dissident employees held a press
conference on October 22 at which they denounced the store's
employment policy as racist, reiterated their desire to deal
directly with "the top management" of the Company over minority
employment conditions, and announced their intention to picket and
institute a boycott of the store. On Saturday, November 2, Hollins,
Hawkins, and at least two other employees picketed the store
throughout the day and distributed at the entrance handbills urging
consumers not to patronize the store. [
Footnote 2] Johnson
Page 420 U. S. 56
encountered the picketing employees, again urged them to rely on
the grievance process, and warned that they might be fired for
their activities. The pickets, however, were not dissuaded, and
they continued to press their demand to deal directly with the
Company president. [
Footnote
3]
On November 7, Hollins and Hawkins were given written warnings
that a repetition of the picketing or public statements about the
Company could lead to their discharge. [
Footnote 4] When the conduct was repeated the following
Saturday, the two employees were fired.
Page 420 U. S. 57
Western Addition Community Organization (hereinafter
respondent), a local civil rights association of which Hollins and
Hawkins were members, filed a charge against the Company with the
National Labor Relations Board. The Board's General Counsel
subsequently issued a complaint alleging that, in discharging the
two, the Company had violated § 8(a)(1) of the National Labor
Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(1).
After a hearing, the NLRB Trial Examiner found that the discharged
employees had believed in good faith that the Company was
discriminating against minority employees, and that they had
resorted to concerted activity on the basis of that belief. He
concluded, however, that their activity was not protected by § 7 of
the Act, and that their discharges did not, therefore, violate §
8(a)(1).
The Board, after oral argument, adopted the findings and
conclusions of its Trial Examiner and dismissed the complaint. 192
N.L.R.B. 173. Among the findings adopted by the Board was that the
discharged employees' course of conduct
"was no mere presentation of a grievance, but nothing short of a
demand that the [Company] bargain with the picketing employees for
the entire group of minority employees. [
Footnote 5] "
Page 420 U. S. 58
The Board concluded that protection of such an attempt to
bargain would undermine the statutory system of bargaining through
an exclusive, elected representative, impede elected unions'
efforts at bettering the working conditions of minority
employees,
"and place on the Employer an unreasonable burden of attempting
to placate self-designated representatives of minority groups while
abiding by the terms of a valid bargaining agreement and attempting
in good faith to meet whatever demands the bargaining
representative put forth under that agreement. [
Footnote 6]"
On respondent's petition for review, the Court of Appeals
reversed and remanded. The court was of the view that concerted
activity directed against racial discrimination enjoys a "unique
status" by virtue of the national labor policy against
discrimination, as expressed in both the NLRA,
see United
Packinghouse Workers v. NLRB, 135 U.S.App.D.C. 111, 416 F.2d
1126,
cert. denied, 396 U.S. 903 (1969), and in Title VII
of the
Page 420 U. S. 59
Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §
2000e
et seq., and that the Board had not adequately taken
account of the necessity to accommodate the exclusive bargaining
principle of the NLRA to the national policy of protecting action
taken in opposition to discrimination from employer retaliation.
[
Footnote 7] The court
recognized that protection of the minority group concerted activity
involved in this case would interfere to some extent with the
orderly collective bargaining process, but it considered the
disruptive effect on that process to be outweighed where protection
of minority activity is necessary to full and immediate realization
of the policy against discrimination. In formulating a standard for
distinguishing between protected and unprotected activity, the
majority held that the
"Board should inquire, in cases such as this, whether the union
was actually remedying the discrimination to the
fullest extent
possible, by the most expedient
Page 420 U. S. 60
and efficacious means. Where the union's efforts fall
short of this high standard, the minority group's concerted
activities cannot lose [their] section protection. [
Footnote 8]"
Accordingly, the court remanded the case for the Board to make
this determination and, if it found in favor of the employees, to
consider whether their particular tactics were so disloyal to their
employer as to deprive them of § 7 protection under our decision in
NLRB v. Electrical Workers, 346 U.
S. 464 (1953). [
Footnote
9]
II
Before turning to the central questions of labor policy raised
by these cases, it is important to have firmly in mind the
character of the underlying conduct to which we apply them. As
stated, the Trial Examiner and the Board found that the employees
were discharged for attempting to bargain with the Company over the
terms and conditions of employment as they affected racial
minorities. Although the Court of Appeals expressly declined to set
aside this finding, [
Footnote
10] respondent has devoted
Page 420 U. S. 61
considerable effort to attacking it in this Court, [
Footnote 11] on the theory that the
employees were attempting only to present a grievance to their
employer within the meaning of the first proviso to § 9(a).
[
Footnote 12] We see no
occasion to disturb the finding of the Board.
Universal Camera
Corp. v. NLRB, 340 U. S. 474,
340 U. S. 491
(1951). The issue, then, is whether such attempts to engage in
separate bargaining are protected by § 7 of the Act or proscribed
by § 9(a)
A
Section 7 affirmatively guarantees employees the most basic
rights of industrial self-determination,
"the right
Page 420 U. S. 62
to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection,"
as well as the right to refrain from these activities. These
are, for the most part, collective rights, rights to act in concert
with one's fellow employees; they are protected not for their own
sake, but as an instrument of the national labor policy of
minimizing industrial strife "by encouraging the practice and
procedure of collective bargaining." 29 U.S.C. § 151.
Central to the policy of fostering collective bargaining, where
the employees elect that course, is the principle of majority rule.
See NLRB v. Jones & Laughlin Steel Corp., 301 U. S.
1 (1937). If the majority of a unit chooses union
representation, the NLRA permits it to bargain with its employer to
make union membership a condition of employment, thereby imposing
its choice upon the minority. 29 U.S.C. §§ 157, 158(a)(3). In
establishing a regime of majority rule, Congress sought to secure
to all members of the unit the benefits of their collective
strength and bargaining power, [
Footnote 13] in full awareness that the superior strength
of some individuals or groups might be subordinated to the interest
of the majority.
Vaca v. Sipes, 386 U.
S. 171,
386 U. S. 182
(1967);
J. I. Case Co. v. NLRB, 321 U.
S. 332,
321 U. S.
338-339 (1944); H.R.Rep. No. 972, 74th Cong., 1st Sess.,
18 (1935). As a result, "[t]he complete satisfaction of all who are
represented is hardly to be expected."
Ford Motor Co. v.
Huffman, 345 U. S. 330,
345 U. S. 338
(1953).
Page 420 U. S. 63
The Court most recently had occasion to reexamine the
underpinnings of the majoritarian principle in
NLRB v.
Allis-Chalmers Mfg. Co., 388 U. S. 175
(1967). In that case, employees in two local unions had struck
their common employer to enforce their bargaining demands for a new
contract. In each local, at least the two-thirds majority required
by the constitution of the international union had voted for the
strike, but some members nonetheless crossed the picket lines and
continued to work. When the union later tried and fined these
members, the employer charged that it had violated § 8(b)(1)(A) by
restraining or coercing the employees in the exercise of their § 7
right to refrain from concerted activities. In holding that the
unions had not committed an unfair labor practice by disciplining
the dissident members, we approached the literal language of §
8(b)(1)(A) with an eye to the policy within which it must be
read:
"National labor policy has been built on the premise that, by
pooling their economic strength and acting through a labor
organization freely chosen by the majority, the employees of an
appropriate unit have the most effective means of bargaining for
improvements in wages, hours, and working conditions. The policy
therefore extinguishes the individual employee's power to order his
own relations with his employer, and creates a power vested in the
chosen representative to act in the interests of all
employees."
"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 & N. R. Co., 323 U. S.
192,
323 U. S. 202. Thus, only
the union may contract the employee's terms and conditions of
employment, and provisions for processing his grievances; the union
may even bargain away
Page 420 U. S. 64
his right to strike during the contract term. . . ."
388 U.S. at
388 U. S. 180
(footnotes omitted). [
Footnote
14]
In vesting the representatives of the majority with this broad
power, Congress did not, of course, authorize a tyranny of the
majority over minority interests. First, it confined the exercise
of these powers to the context of a "unit appropriate for the
purposes of collective bargaining,"
i.e., a group of
employees with a sufficient commonality of circumstances to ensure
against the submergence of a minority with distinctively different
interests in the terms and conditions of their employment.
See
Chemical Workers v. Pittsburgh Glass, 404 U.
S. 157,
404 U. S. 171
(1971). Second, it undertook in the 1959 Landrum-Griffin
amendments, 73 Stat. 519, to assure that minority voices are heard
as they are in the functioning of a democratic institution. Third,
we have held, by the very nature of the exclusive bargaining
representative's status as representative of all unit employees,
Congress implicitly imposed upon it a duty fairly and in good faith
to represent the interests of minorities within the unit.
Vaca
v. Sipes, supra; Wallace Corp. v. NLRB, 323 U.
S. 248 (1944);
cf. Steele v. Louisville & N. R.
Co., 323 U. S. 192
(1944). And the Board has taken the position that a union's refusal
to process grievances against racial discrimination, in violation
of that duty, is an unfair labor practice.
Hughes Tool
Co., 147 N.L.R.B. 1573 (1964);
see Miranda Fuel Co.,
140 N.L.R.B. 181 (1962),
enforcement denied, 326 F.2d 172
(CA2 1963). Indeed, the Board has ordered a union implicated by a
collective bargaining agreement in discrimination with an employer
to propose specific contractual provisions to prohibit racial
discrimination.
See Local Union No. 12, United
Page 420 U. S. 65
Rubber Workers of America v. NLRB, 368 F.2d 12 (CA5
1966) (enforcement granted).
B
Against this background of long and consistent adherence to the
principle of exclusive representation tempered by safeguards for
the protection of minority interests, respondent urges this Court
to fashion a limited exception to that principle: employees who
seek to bargain separately with their employer as to the
elimination of racially discriminatory employment practices
peculiarly affecting them [
Footnote 15] should be free from the constraints of the
exclusivity principle of § 9(a). Essentially because established
procedures under Title VII or, as in this case, a grievance
machinery, are too time-consuming, the national labor policy
against discrimination requires this exception, respondent argues,
and its adoption would not unduly compromise the legitimate
interests of either unions or employers. [
Footnote 16]
Page 420 U. S. 66
Plainly, national labor policy embodies the principles of
nondiscrimination as a matter of highest priority,
Alexander v.
Gardner-Denver Co., 415 U. S. 36,
415 U. S. 47
(1974), and it is a commonplace that we must construe the NLRA in
light of the broad national labor policy of which it is a part.
See Textile Workers v. Lincoln Mills, 353 U.
S. 448,
353 U. S. 456
458 (1957). These general principles do not aid respondent,
however, as it is far from clear that separate bargaining is
necessary to help eliminate discrimination. Indeed, as the facts of
this litigation demonstrate, the proposed remedy might have just
the opposite effect. The collective bargaining agreement involved
here prohibited without qualification all manner of invidious
discrimination, and made any claimed violation a grievable issue.
The grievance procedure is directed precisely at determining
whether discrimination has occurred. [
Footnote 17] That orderly determination, if affirmative,
could lead to an arbitral award enforceable in court. [
Footnote 18] Nor is there any reason
to believe that the processing of grievances is inherently limited
to the correction of individual cases of discrimination. Quite
apart from the essentially contractual question of whether the
Union could grieve against a "pattern or practice" it deems
inconsistent with
Page 420 U. S. 67
the nondiscrimiation clause of the contract, one would hardly
expect an employer to continue in effect an employment practice
that routinely results in adverse arbitral decisions. [
Footnote 19]
The decision by a handful of employees to bypass the grievance
procedure in favor of attempting to bargain with their employer, by
contrast, may or may not be predicated upon the actual existence of
discrimination. An employer confronted with bargaining demands from
each of several minority groups would not necessarily, or even
probably, be able to agree to remedial steps satisfactory to all at
once. Competing claims on the employer's ability to accommodate
each group's demands,
e.g., for reassignments and
promotions to a limited number of positions, could only set one
group against the other, even if it is not the employer's intention
to divide and overcome them. Having divided themselves, the
minority employees will not be in position to advance their cause
unless it be by recourse
seriatim to economic coercion,
which can only have the effect of further dividing them along
racial or other lines. [
Footnote
20] Nor is the situation materially
Page 420 U. S. 68
different where, as apparently happened here, self-designated
representatives purport to speak for all groups that might consider
themselves to be victims of discrimination. Even if in actual
bargaining the various groups did not perceive their interests as
divergent and further subdivide themselves, the employer would be
bound to bargain with them in a field largely preempted by the
current collective bargaining agreement with the elected bargaining
representative. In this instance, we do not know precisely what
form the demands advanced by Hollins, Hawkins,
et al.
would take, but the nature of the grievance that motivated them
indicates that the demands would have included the transfer of some
minority employees to sales areas in which higher commissions were
paid. [
Footnote 21] Yet the
collective bargaining agreement provided that no employee would be
transferred from a higher-paying to a lower-paying classification
except by consent or in the course of a layoff or reduction in
force. [
Footnote 22] The
potential for conflict between the minority and other employees in
this situation is manifest. With each group able to enforce its
conflicting demands -- the incumbent employees by resort to
contractual processes and the minority employees by economic
coercion -- the probability of strife and deadlock, is high; the
likelihood of
Page 420 U. S. 69
making headway against discriminatory practices would be
minimal.
See Gateway Coal Co. v. Mine Workers,
414 U. S. 368,
414 U. S. 379
(1974).
What has been said here in evaluating respondent's claim that
the policy against discrimination requires § 7 protection for
concerted efforts at minority bargaining has obvious implications
for the related claim that legitimate employer and union interests
would not be unduly compromised thereby. The court below minimized
the impact on the Union in this case by noting that it was not
working at cross-purposes with the dissidents, and that indeed it
could not do so consistent with its duty of fair representation and
perhaps its obligations under Title VII. As to the Company, its
obligations under Title VII are cited for the proposition that it
could have no legitimate objection to bargaining with the
dissidents in order to achieve full compliance with that law.
This argument confuses the employees' substantive right to be
free of racial discrimination with the procedures available under
the NLRA for securing these rights. Whether they are thought to
depend upon Title VII or have an independent source in the NLRA,
[
Footnote 23] they cannot be
pursued at the expense of the orderly collective bargaining process
contemplated by the NLRA. The elimination of discrimination and its
vestiges is an appropriate subject of bargaining, and an employer
may have no objection to incorporating into a collective agreement
the substance of his obligation not to discriminate in personnel
decisions; the Company here has done as much, making any claimed
dereliction a matter subject to the grievance-arbitration
machinery, as well as to the processes of Title VII. But that does
not mean that an employer may not
Page 420 U. S. 70
have strong and legitimate objections to bargaining on several
fronts over the implementation of the right to be free of
discrimination for some of the reasons set forth above. Similarly,
while a union cannot lawfully bargain for the establishment or
continuation of discriminatory practices,
see Steele v.
Louisville & N. R. Co., 323 U. S. 192
(1944); 42 U.S.C. § 2000e-2(c)(3), it has a legitimate interest in
presenting a united front on this as on other issues, and in not
seeing its strength dissipated and its stature denigrated by
subgroups within the unit separately pursuing what they see as
separate interests. When union and employer are not responsive to
their legal obligations, the bargain they have struck must yield
pro tanto to the law, whether by means of conciliation
through the offices of the EEOC or by means of federal court
enforcement at the instance of either that agency or the party
claiming to be aggrieved.
Accordingly, we think neither aspect of respondent's contention
in support of a right to short-circuit orderly, established
processes for eliminating discrimination in employment is well
founded. The policy of industrial self-determination as expressed
in § 7 does not require fragmentation of the bargaining unit along
racial or other lines in order to consist with the national labor
policy against discrimination. And in the face of such
fragmentation, whatever its effect on discriminatory practices, the
bargaining process that the principle of exclusive representation
is meant to lubricate could not endure unhampered.
III
Even if the NLRA, when read in the context of the general policy
against discrimination, does not sanction these employees' attempt
to bargain with the Company, it is contended that it must do so if
a specific element of that policy is to be preserved. The element
in question
Page 420 U. S. 71
is the congressional policy of protecting from employer reprisal
employee efforts to oppose unlawful discrimination, as expressed in
§ 704(a) of Title VII,
see n 7,
supra. Since the discharged employees here
had, by their own lights, "opposed" discrimination, it is argued
that their activities "fell plainly within the scope of," and their
discharges therefore violated, § 704(a). [
Footnote 24] The notion here is that, if the
discharges did not also violate § 8(a)(1) of the NLRA, then the
integrity of § 704(a) will be seriously undermined. We cannot
agree.
Even assuming that § 704(a) protects employees' picketing and
instituting a consumer boycott of their employer, [
Footnote 25] the same conduct is not
necessarily entitled to
Page 420 U. S. 72
affirmative protection from the NLRA. Under the scheme of that
Act, conduct which is not protected concerted activity may lawfully
form the basis for the participants' discharge. That does not mean
that the discharge is immune from attack on other statutory grounds
in an appropriate case. If the discharges in these cases are
violative of § 704(a) of Title VII, the remedial provisions of that
Title provide the means by which Hollins and Hawkins may recover
their jobs with backpay. 42 U.S.C. § 2000e-5(g) (1970 ed., Supp.
III).
Respondent objects that reliance on the remedies provided by
Title VII is inadequate effectively to secure the rights conferred
by Title VII. There are indeed significant differences between
proceedings initiated under Title VII and an unfair labor practice
proceeding. Congress chose to encourage voluntary compliance with
Title VII by emphasizing conciliatory procedures before federal
coercive powers could be invoked. Even then it did not provide the
EEOC with the power of direct enforcement, but made the federal
courts available to the agency or individual to secure compliance
with Title VII.
See Alexander v. Gardner-Denver Co., 415
U.S. at
415 U. S. 44-45.
By contrast, once the General Counsel of the NLRB decides to issue
a complaint, vindication of the charging party's statutory rights
becomes a public function discharged at public expense, and a
favorable decision by the Board brings forth an administrative
order. As
Page 420 U. S. 73
a result of these and other differences, we are told that relief
is typically available to the party filing a charge with the NLRB
in a significantly shorter time and with less risk, than obtains
for one filing a charge with the EEOC.
Whatever its factual merit, this argument is properly addressed
to the Congress, and not to this Court or the NLRB. In order to
hold that employer conduct violates § 8(a)(1) of the NLRA because
it violates § 704(a) of Title VII, we would have to override a host
of consciously made decisions well within the exclusive competence
of the Legislature. [
Footnote
26] This, obviously, we cannot do.
Reversed.
* Together with No. 73-830,
National Labor Relations Board
v. Western Addition Community Organization, et al., also on
certiorari to the same court.
[
Footnote 1]
Section 5B provided:
"Any act of any employer, representative of the Union, or any
employe that is interfering with the faithful performance of this
agreement, or a harmonious relationship between the employers and
the UNION, may be referred to the Adjustment Board for such action
as the Adjustment Board deems proper, and is permissive within this
agreement."
App. 100-101.
Section 36B established an Adjustment Board consisting of three
Union and three management members. Section 36C provided that, if
any matter referred to the Adjustment Board remained unsettled
after seven days, either party could insist that the dispute be
submitted to final and binding arbitration. App. 101-102.
[
Footnote 2]
The full text of the handbill read:
"
* * BEWARE * * * * BEWARE * * * * BEWARE * *"
"
EMPORIUM SHOPPERS"
"
"Boycott Is On" "Boycott Is On" "Boycott Is On""
"For years at The Emporium black, brown, yellow and red people
have worked at the lowest jobs, at the lowest levels. Time and time
again, we have seen intelligent, hard working brothers and sisters
denied promotions and respect."
"The Emporium is a 20th Century colonial plantation. The
brothers and sisters are being treated the same way as our brothers
are being treated in the slave mines of Africa."
"Whenever the racist pig at The Emporium injures or harms a
black sister or brother, they injure and insult all black people.
THE EMPORIUM MUST PAY FOR THESE INSULTS. Therefore, we encourage
all of our people to take their money out of this racist store,
until black people have full employment and are promoted justly
through out The Emporium."
"We welcome the support of our brothers and sisters from the
churches, unions, sororities, fraternities, social clubs,
Afro-American Institute, Black Panther Party, W.A.C.O. and the Poor
Peoples Institute."
App. 107.
[
Footnote 3]
Johnson testified that Hollins
"informed me that the only one they wanted to talk to was Mr.
Batchelder [the Company president], and I informed him that we had
concluded negotiations in 1967, and I was a spokesman for the union
and represented a few thousand clerks and I have never met Mr.
Batchelder. . . ."
App. 76.
[
Footnote 4]
The warning given to Hollins read:
"On October 22, 1968, you issued a public statement at a press
conference to which all newspapers, radio, and TV stations were
invited. The contents of this statement were substantially the same
as those set forth in the sheet attached. This statement was
broadcast on Channel 2 on October 22, 1968, and Station KDIA."
"On November 2nd, you distributed copies of the attached
statement to Negro customers and prospective customers, and to
other persons passing by in front of The Emporium."
"These statements are untrue, and are intended to, and will, if
continued, injure the reputation of The Emporium."
"There are ample legal remedies to correct any discrimination
you may claim to exist. Therefore, we view your activities as a
deliberate and unjustified attempt to injure your employer."
"This is to inform you that you may be discharged if you repeat
any of the above acts or make any similar public statement."
That given to Hawkins was the same except that the first
paragraph was not included.
Id. at 106.
[
Footnote 5]
192 N.L.R.B. at 185. The evidence marshaled in support of this
finding consisted of Hollins' meeting with the Company president in
which he said that he wanted to discuss the problem perceived by
minority employees; his statement that the pickets would not desist
until the president treated with them; Hawkins' testimony that
their purpose in picketing was to "talk to the top management to
get better conditions"; and his statement that they wanted to
achieve their purpose through "group talk and through the president
if we could talk to him," as opposed to use of the
grievance-arbitration machinery.
[
Footnote 6]
The Board considered, but stopped short of resolving, the
question of whether the employees' invective and call for a boycott
of the Company bespoke so malicious an attempt to harm their
employer as to deprive them of the protection of the Act. The Board
decision is therefore grounded squarely on the view that a minority
group member may not bypass the Union and bargain directly over
matters affecting minority employees, and not at all on the tactics
used in this particular attempt to obtain such bargaining.
Member Jenkins dissented on the ground that the employees'
activity was protected by § 7 because it concerned the terms and
conditions of their employment. Member Brown agreed, but expressly
relied upon his view that the facts revealed no attempt to
bargain,
"but simply to urge [the Company] to take action to correct
conditions of racial discrimination which the employees reasonably
believed existed at the Enporium."
192 N.L.R.B. at 179.
[
Footnote 7]
Section 9(a) of the NLRA, 29 U.S.C. § 159(a), provides in
part:
"Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit
appropriate for such purposes shall be the exclusive
representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment. . . ."
Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) (1970 ed.,
Supp. III), provides:
"It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for
employment, for an employment agency or joint labor-management
committee controlling apprenticeship or other training or
retraining, including on-the-job training programs, to discriminate
against any individual; or for a labor organization to discriminate
against any member thereof or applicant for membership, because he
has opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation
proceeding, or hearing under this subchapter."
[
Footnote 8]
158 U.S.App.D.C. at 152, 485 F.2d at 931 (emphasis in original).
We hasten to point out that it had never been determined in any
forum, at least as of the time that Hollins and Hawkins engaged in
the activity for which they were discharged, that the Company had
engaged in any discriminatory conduct. The Board found that the
employees believed that the Company had done so, but that no
evidence introduced in defense of their resort to self-help
supported this belief.
[
Footnote 9]
Judge Wyzanski dissented insofar as the Board was directed on
remand to evaluate the adequacy of the Union's efforts in opposing
discrimination. He was of the view that minority concerted activity
against discrimination would be protected regardless of the Union's
efforts.
[
Footnote 10]
Id. at 150 n. 34, 485 F.2d at 929 n. 34 (majority
opinion);
id. at 158, 485 F.2d at 937 (dissenting opinion)
("There could not be a plainer instance of an attempt to bargain
respecting working conditions, as distinguished from an adjustment
of grievances").
[
Footnote 11]
Brief for Respondent 27-34; Tr. of Oral Arg. 34, 37-40, 44,
49.
[
Footnote 12]
That proviso states:
"That any individual employee or a group of employees shall have
the right at any time to present grievances to their employer and
to have such grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is not
inconsistent with the terms of a collective bargaining contract or
agreement then in effect. . . ."
Respondent clearly misapprehends the nature of the "right"
conferred by this section. The intendment of the proviso is to
permit employees to present grievances and to authorize the
employer to entertain them without opening itself to liability for
dealing directly with employees in derogation of the duty to
bargain only with the exclusive bargaining representative, a
violation of § 8(a)(5). H.R.Rep. No. 245, 80th Cong., 1st Sess., 7
(1947); H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. (House
managers' statement), 46 (1947). The Act nowhere protects this
"right" by making it an unfair labor practice for an employer to
refuse to entertain such a presentation, nor can it be read to
authorize resort to economic coercion. This matter is fully
explicated in
Black-Clawson Co. v. Machinists, 313 F.2d
179 (CA2 1962).
See also Republic Steel v. Maddox,
379 U. S. 650
(1965). If the employees' activity in the present litigation is to
be deemed protected, therefore, it must be so by reason of the
reading given to the main part of § 9(a), in light of Title VII and
the national policy against employment discrimination, and not by
burdening the proviso to that section with a load it was not meant
to carry.
[
Footnote 13]
In introducing the bill that became the NLRA, Senator Wagner
said of the provisions establishing majority rule:
"Without them, the phrase 'collective bargaining' is devoid of
meaning, and the very few unfair employers are encouraged to divide
their workers against themselves."
79 Cong.Rec. 2372 (1935).
[
Footnote 14]
The Union may not, of course, bargain away the employees'
statutory right to choose a new, or to have no, bargaining
representative.
See NLRB v. Magnavox Co., 415 U.
S. 322 (1974).
[
Footnote 15]
As respondent conceded at oral argument, the rule it espouses
here would necessarily have equal application to any identifiable
group of employees -- racial or religious groups, women, etc. --
that reasonably believed themselves to be the object of invidious
discrimination by their employer. Tr. of Oral Arg. 30-31. As
seemingly limited by the Court of Appeals, however, such a group
would have to give their elected representative an opportunity to
adjust the matter in some way before resorting to self-help.
[
Footnote 16]
Our analysis of respondent's argument in favor of the exception
makes it unnecessary either to accept or reject its factual
predicate,
viz., that the procedures now established for
the elimination of discrimination in employment are too cumbersome
to be effective. We note, however, that the present record provides
no support for the proposition. Thus, while respondent stresses the
fact that Hollins and Hawkins had brought their evidence of
discrimination to the Union in April, 1968, but did not resort to
self-help until the following October, it overlooks the fact that,
although they had been in contact with the state FEPC, they did not
file a charge with that agency or the Equal Employment Opportunity
Commission (EEOC). Further, when they abandoned the procedures to
which the Union was bound because they thought "the union was sort
of putting us off and on and was going into a lot of delay that we
felt was unnecessary," App. 26, it was at the very moment that the
Adjustment Board had been convened to hear their testimony.
[
Footnote 17]
The Union in this case had been "prepared to go into
arbitration" to enforce its position, but was advised by its
attorney that it would be difficult to do so without the dissident
members' testimony. Testimony of Walter Johnson, App. 76.
[
Footnote 18]
Even if the arbitral decision denies the putative
discriminatee's complaint, his access to the processes of Title
VII, and thereby to the federal courts, is not foreclosed.
Alexander v. Gardner-Denver Co., 415 U. S.
36 (1974).
[
Footnote 19]
"The processing of disputes through the grievance machinery is
actually a vehicle by which meaning and content are given to the
collective bargaining agreement,"
Steelworkers v. Warrior & Gulf Co., 363 U.
S. 574,
363 U. S. 581
(1960); hence the "
common law of the shop.'" Id. at
363 U. S. 580,
quoting Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev.
1482, 1499 (1959).
The remarks of Union Secretary-Treasurer Johnson in response to
the suggestion that the Union abandon the grievance-arbitration
avenue in favor of economic coercion are indicative. "
I
informed them,'" he testified,
"'what an individual wanted to do on their own, they could do,
but I wasn't going to engage in any drama, but I wanted some
orderly legal procedures that would have some long lasting
effect.'"
192 N.L.R.B. at 182.
[
Footnote 20]
The Company's Employer Information Report EEO-1 to the EEOC for
the period during which this dispute arose indicates that it had
employees in every minority group for which information was
required. Among sales workers alone, it recorded male and female
employees who were Negro, Oriental, and Spanish-surnamed. App. 120.
In addition, the Union took the position that older employees were
also being discriminated against.
[
Footnote 21]
At the Board hearing, Hollins and Hawkins advanced as a basis
for their belief that the Company was discriminating in assignments
and promotions their own survey, Briefing on Conditions, Gen.
Counsel Ex. 10, Court of Appeals App. 167. This document,
reproduced in part in this Court, states:
"We demand selling personnel of the following Racial groups to
be infiltrated into the following high commission selling areas.
Black, Mexicans, Chinese, Filipinos, etc."
A number of such departments of the store are then listed. App.
118.
[
Footnote 22]
§ 20B (Seniority). Court of Appeals App. 205.
[
Footnote 23]
See United Packinghouse Workers v. NLRB, 135
U.S.App.D.C. 111, 416 F.2d 1126,
cert. denied, 396 U.S.
903 (1969);
Local Union No. 12, United Rubber Workers of
America v. NLRB, 368 F.2d 12 (CA5 1966).
[
Footnote 24]
This argument as advanced by respondent is somewhat weakened by
its context of insistence that the discharged employees were not
seeking to bargain with the Company. The same argument is made in
the
amicus curiae brief of the National Association for
the Advancement of Colored People, pp. 9-14, on the assumption,
however, that bargaining -- over the issue of racial discrimination
alone -- was their objective. In light of our declination to upset
the finding to that effect, we take the argument as the
amicus makes it.
[
Footnote 25]
The question of whether § 704(a) is applicable to the facts of
this case is not as free from doubt as the respondent and
amicus would have it. In its brief, the NLRB argues that §
704(a) is directed at protecting access to the EEOC and federal
courts.
Pettway v. American Cast Iron Pipe Co., 411 F.2d
998 (CA5 1969). We have previously had occasion to note that
"[n]othing in Title VII compels an employer to absolve and rehire
one who has engaged in . . . deliberate, unlawful activity against
it."
McDonnell Douglas Corp. v. Green, 411 U.
S. 792,
411 U. S. 803
(1973). Whether the protection afforded by § 704(a) extends only to
the right of access or well beyond it, however, is not a question
properly presented by these cases. Nor is it an appropriate
question to be answered in the first instance by the NLRB.
Questions arising under Title VII must be resolved by the means
that Congress provided for that purpose.
In the course of arguing for affirmance of the decision below,
under which the NLRB would be called upon to evaluate the
effectiveness of a union's efforts to oppose employer
discrimination in the bargaining unit, respondent takes the
position that the Board is well equipped by reason of experience
and perspective to play a major role in the process of eliminating
discrimination in employment. The Board-enforced duty of fair
representation, it is noted, has already exposed it to the problems
that inhere in detecting and deterring racial discrimination within
unions. What is said above does not call into question either the
capacity or the propriety of the Board's sensitivity to questions
of discrimination. It pertains, rather, to the proper allocation of
a particular function -- adjudication of claimed violations of
Title VII -- that Congress has assigned elsewhere.
[
Footnote 26]
In
Alexander v. Gardner-Denver Co., 415 U.S. at
415 U. S. 48 n.
9, we had occasion to refer to Senator Clark's interpretive
memorandum stating that "[n]othing in Title VII or anywhere else in
this bill affects rights and obligations under the NLRA. . . ."
Since the Senator's remarks was directed to the suggestion that
enactment of Title VII would somehow constrict an employee's access
to redress under other statutory regimes, we do not take them as
foreclosing the possibility that, in some circumstances, rights
created by the NLRA and related laws affecting the employment
relationship must be broadened to accommodate the policies of Title
VII.
MR. JUSTICE DOUGLAS, dissenting.
The Court's opinion makes these Union members and others
similarly situated -- prisoners of the Union. The law, I think, was
designed to prevent that tragic consequence. Hence, I dissent.
The employees involved, who are black and who were members of a
Union through which they obtained employment by the Emporium, would
seem to have suffered rank discrimination because of their race.
They theoretically had a cause of action against their Union for
breach of its duty of fair representation spelled out in
Steele, v. Louisville & N. R. Co., 323 U.
S. 192. But as the law on
Page 420 U. S. 74
that phase of the problem has evolved, it would seem that the
burden on the employee is heavy.
See Vaca v. Sipes,
386 U. S. 171,
386 U. S. 190,
where it was held that the union action must be "arbitrary,
discriminatory, or in bad faith."
The employees might also have sought relief under Title VII of
the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §
2000e
et seq., which forbids discrimination in employment
on the basis of "race, color, religion, sex or national origin."
Section 704(a) of that Act makes it unlawful for an employer to
"discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by [the
Act], or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under [the Act]."
In distinguishing "opposition" from participation in legal
proceedings brought pursuant to the statute, it would seem that
Congress brought employee self-help within the protection of §
704.*
In this case, the employees took neither of the foregoing
courses, each fraught with obstacles, but picketed to protest
Emporium's practices. I believe these were
Page 420 U. S. 75
"concerted activities" protected under § 7 of the National Labor
Relations Act. The employees were engaged in a traditional form of
labor protest, directed at matters which are unquestionably a
proper subject of employee concern. As long ago as
New Negro
Alliance v. Sanitary Grocery Co., 303 U.
S. 552,
303 U. S. 561,
we observed:
"The desire for fair and equitable conditions of employment on
the part of persons of any race, color, or persuasion, and the
removal of discriminations against them by reason of their race or
religious beliefs is quite as important to those concerned as
fairness and equity in terms and conditions of employment can be to
trade or craft unions or any form of labor organization or
association."
These observations have added force today with the enactment of
Title VII, which unequivocally makes the eradication of employment
discrimination part of the federal labor policy in light of which
all labor laws must be construed.
The Board has held that the employees were unprotected because
they sought to confront the employer outside the grievance process,
which was under Union control. The Court upholds the Board on the
view that this result is commanded by the principle of "exclusive
representation" embodied in § 9 of the NLRA. But, in the area of
racial discrimination, the Union is hardly in a position to demand
exclusive control, for the employee's right to nondiscriminatory
treatment does not depend upon Union demand, but is based on the
law. We held in
Alexander v. Gardner-Denver Co.,
415 U. S. 36, that
a union may not circumscribe an employee's opportunity to seek
relief under Title VII. We said there that Title VII
"concerns not majoritarian processes, but an individual's right
to equal employment opportunities. Title VII's strictures are
absolute, and represent a congressional
Page 420 U. S. 76
command that each employee be free from discriminatory
practices."
Id. at
415 U. S.
51.
The law should facilitate the involvement of unions in the quest
for racial equality in employment, but it should not make the
individual a prisoner of the union. While employees may reasonably
be required to approach the union first, as a kind of "exhaustion"
requirement before resorting to economic protest,
cf. NLRB v.
Tanner Motor Livery, 419 F.2d 216 (CA9), they should not be
under continued inhibition when it becomes apparent that the union
response is inadequate. The Court of Appeals held that the
employees should be protected from discharge unless the Board found
on remand that the Union had been prosecuting their complaints
"
to the fullest extent possible, by the most expedient and
efficacious means." 158 U.S.App.D.C. 138, 152, 485 F.2d 917,
931. I would not disturb this standard. Union conduct can be
oppressive even if not made in bad faith. The inertia of
weak-kneed, docile union leadership can be as devastating to the
cause of racial equality as aggressive subversion. Continued
submission by employees to such a regime should not be
demanded.
I would affirm the judgment below.
*
See CCH EEOC Decisions (1973) � 6264 (Apr.19, 1971).
There, the EEOC held that, in spite of a collective agreement
involving a "no strike" clause, an employee might picket the plant
for discrimination against blacks. The Commission said:
"An employee has a statutory right under Title VII to oppose,
without retaliation, any unlawful employment practices of his
employer. We believe this right cannot be abolished or diminished
by a collective bargaining agreement. The protection which Title
VII affords to Charging Party No. 1's conduct may be analogized to
the protection the National Labor Relations Act affords employees
who picket in protest against unfair labor practices committed by
their employer, although there exists a valid collective bargaining
agreement containing a no-strike clause."
The Commission rightly concluded that that decision was in line
with
Mastro Plastics Corp. v. NLRB, 350 U.
S. 270.