Bell & Howell Co.

National Labor Relations Board - Board DecisionsSep 20, 1974

213 N.L.R.B. 407 (N.L.R.B. 1974)

BELL & HOWELL COMPANY Bell & Howell Company and International Union of Operating Engineers , Local 399, AFL-CIO, Peti- tioner. Case 13-RC-13022 September 20, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE On January 15, 1974, the Regional Director for Region 13 issued a Decision and Direction of Election in the above-entitled proceeding. On February 15, 1974, a secret ballot election was conducted among the employees in the unit.' The tally of ballots fur- nished the parties showed that of approximately eight eligible voters eight cast valid ballots, of which seven were for, and one against, the Petitioner. Thereafter, on February 20, 1974, the Employer filed with the Regional Director a motion to disquali- fy the Petitioner as collective-bargaining representa- tive. On March 8, 1974, the Regional Director transferred this matter to the Board for decision. In its motion the Employer argues, inter alia, that the motion for disqualification should be granted based on the following contentions: 1. Since, according to the testimony of Richard Wren, president and business representative of Peti- tioner, Petitioner exercises substantial control over the stationary engineering trade in the Chicago area, the Employer contends that membership in the Peti- tioner is the sine qua non for obtaining employment in the trade in the Chicago area. Accordingly, the Em- ployer argues that the absence of female stationary engineers is the natural effect of Petitioner's alleged discriminatory policies. 2. Petitioner's bylaws provide for a death benefit payable to "beneficiaries of members." The primary beneficiary is a member's "widow." No provision is made for a member's "widower." The Employer claims that the Petitioner's plan, whereby death bene- fits are payable to the surviving spouse of a male member, but not to the surviving spouse of a female member, unlawfully discriminates on the basis of sex in violation of section 703(c), Title VII of Civil Rights Act of 1964, as amended. 3. Petitioner's group insurance plan which pro- vides benefits for members who are employed by em- ployers with whom Petitioner has agreements is alleged to be discriminatory. Maternity benefits are provided for "dependent wives" of male employees, but no maternity benefits are provided for female ' All stationary engineers and stationary firemen in department 2889 at the Employer's facility at 7100 N . McCormick Blvd., Lincolnwood , Illinois, but excluding all office clerical employees , plant clerical employees, guards and supervisors as defined in the Act, and all other employees. 407 employees. The Employer contends that the mainte- nance of such an agreement which discriminates on the basis of sex is in violation of section 703(c), Title VII of the Civil Rights Act of 1964, as amended. 4. The Employer contends that none of Petitioner's officers or business representatives is female. In addi- tion, the Employer asserts that it contacted a number of the employers who have contracts with Petitioner, and that, of the more than 1,000 persons who are members of Petitioner 2 and who are covered by these contracts, not one is female. The Employer points that this complete absence of female officers, business rep- resentatives, and members establishes a prima facie case of past discrimination. 5. Combining all of the above-mentioned allega- tions, the Employer argues that the natural effect has been to discourage females from attempting to enter the stationary engineering trade in the Chicago area. Therefore, on the basis of N. L. R. B. v. Mansion House Center Management Corp., 473 F.2d 471 (C.A. 8, 1973), the Employer argues that Petitioner should be disqualified as the collective-bargaining representa- tive of the employees in the appropriate unit. On February 21, 1974, the Employer forwarded a letter to the Regional Director for Region 13 in fur- ther support of its motion to disqualify the Petitioner. In this letter, the Employer directed the Regional Director's attention to the "Geographical Profile of Employment and Unemployment, 1972" published by the Bureau of Labor Statistics. This report, the Employer submits, shows that in the Chicago Stan- dard Metropolitan Statistical Area (SMSA) the civil- ian labor force numbers 3,099,000. Of that total, the report states that 1,069,000 are women 20 years or over. The Employer concludes. from these statistics that 34 percent of the civilian labor force in the Chica- go SMSA are women. However, the Employer con- tends that there are 0 percent women among Petitioner's members who are stationary engineers. Thus, the Employer requested a hearing to present evidence tending to show that Petitioner unlawfully discriminates against females. On May 8, 1974, the Petitioner filed an opposition to the motion to disqualify. The Petitioner argued, inter alia, that it does not have a contractually estab- lished exclusive hiring hall and exercises no control over the composition of the work force it represents or seeks to represent. The Petitioner claims to "take the work force it represents as it finds it." Moreover, the Petitioner argues that on the basis of Washington Sheraton Corporation, t/a Sheraton Park Hotel & Mo- tor Inn, 199 NLRB 728 (1972), the Board should reject an attempt to disqualify a union, where there is no evidence that there are any female employees in the 2 The Employer states that Petitioner has 4 ,300 members. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit sought. For under Washington Sheraton, the Peti- tioner argues, the test to establish unlawful discrimi- natory practices is relevant with respect to only the employees in the unit sought. Since there is no evi- dence of female employees in the unit sought, the Petitioner contends that the question of discrimina- tion is not relevant. On May 14, 1974, the Employer filed a reply to Petitioner's opposition to the motion to disqualify and on May 16, 1974, the Employer requested oral argu- ment before the Board. The Petitioner, on June 13, 1974, in a letter to the Board, requested that, in light of Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB No. 7 (1974), the case be returned to the Region with instructions that a certification be issued. Thereafter, on June 19, 1974, the Employer filed a motion for leave to file an additional brief in light of the Bekins, supra, decision. On June 21, 1974, the Petitioner filed an opposition to the Employer's mo- tion for leave to file an additional brief. The Board has considered the entire record in this case with respect to the issues raised by the motions and briefs and finds as follows: The Employer's motion to disqualify the Petitioner as the collective-bargaining representative; its request for oral argument; and its motion for leave to file an additional brief are hereby denied. We believe that disqualification of the Petitioner because it allegedly discriminates on the basis of sex is neither required by the Constitution nor permitted by the Act. As we stated in our dissent in Bekins Moving & Storage Co. of Florida, Inc., supra, we would "leave such questions as they may raise , with respect to the Petitioner's willingness or capacity to represent all employees in the bargaining unit, to be resolved in other proceedings under the Act." CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for International Union of Op- erating Engineers , Local 399 , AFL-CIO, and that, pursuant to Section 9(a) of the National labor Rela- tions Act, as amended , the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employment , or other conditions of employ- ment. MEMBER KENNEDY, concurring: I agree with Member Fanning and Member Penello to the extent that I would deny the Employer's motion to disqualify the Petitioner since that motion is based on alleged sex discrimination by the Petitioner. I do not believe that the Board should entertain an allega- tion that a labor organization discriminates on the basis of sex in a precertification representation pro- ceeding. Accordingly, I concur with Members Fanning and Penello in issuing a certification to the Petitioner in these circumstances. In Bekins, I stated that "the Board must entertain allegations that a labor organi- zation excludes persons from membership on the ba- sis of race, alienage, or national origin." Each of these classifications has been determined by the Supreme Court to be inherently suspect,3 thus requiring strict judicial scrutiny. In Kahn v. Shevin, Attorney General of Florida, et al., 416 U.S. 351 (1974), and more recent- ly in Geduldig v. Aiello, 417 U.S. 484 (June 17, 1974), the majority of the Supreme Court refused to find legislative classifications based on sex inherently sus- pect. In my view, the Board must satisfy its constitutional responsibilities in a manner which will least interfere with the procedures by which employees select a bar- gaining representative. Therefore, the Board should move into this developing area of the law one step at a time. In Bekins, Chairman Miller and Member Jenkins stated that "after much deliberation, we have con- cluded that we are not yet sufficiently experienced in this newly developing area of the law to enable us to codify, at this time, our approach to such issues, either procedurally or substantively." By the same token, we are not sufficiently experienced at this time to effec- tively address ourselves to the entire spectrum of the discrimination area by adjudicatory means. Accordingly, it is my belief that the most judicious and reasonable method of approach is to address our- selves, at this juncture, to the most serious forms of unlawful discrimination. Thus, in precertification rep- resentation proceedings, the Board should only view allegations of discrimination which involve classifica- tions determined by the Supreme Court to be inher- ently suspect, that is, race, alienage, or national origin. It must be emphasized that I do not approve or con- done any form of unlawful discrimination. However, I agree with Judge Wisdom of the Fifth Circuit that "an Agency need not strike at all evils at the same time. . . reform may take one step at a time address- ing itself to the phase of the problem which seems most acute." Ray Baillie Trash Hauling, Inc., et at. v. Kleppe, 477 F.2d 696, 704 (C.A. 5, 1973.4 3 See Loving v. Virginia 388 U.S. 1, 11 (1967); McLaughlin v. Florida, 379 U.S. 184, 191-192 (1964); Graham, Commissioner, Department of Public Wel- fare of Arizona v . Richardson, 403 U.S. 365, 372 (1971); Oyama v. California, 332 U.S. 633, 644-646 (1948). 4 See also Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955). BELL & HOWELL COMPANY Accordingly, I would not view an allegation of un- lawful sex discrimination in a precertification repre- sentation proceeding. Nevertheless, this does not foreclose a party from raising this question after certi- fication has issued. For I would then view the activity as a possible breach of the statutory duty of fair repre- sentation. See Independent Metal Workers Union, Lo- cal No. 1 (Hughes Tool Company), 147 NLRB 1573 (1964). Even if I am in error with respect to the obligation of this Agency to consider discrimination on the basis of sex as an impediment to certification of a labor organization, I do not believe that the allegations in the Employer's motion raise issues which warrant de- lay in certifying Petitioner. There is no allegation that Petitioner's constitution or bylaws deny membership to females. In my view, bylaw provisions which pro- vide death benefits to widows and maternity benefits for dependent wives impose no constitutional impedi- ment to certification. The Employer alleges in its motion that Petitioner exercises control over stationary engineers in the Chi- cago area and the absence of females in its member- ship suggests that Petitioner is engaged in a pattern or practice of sex discrimination. In the absence of a Supreme Court directive, I am unwilling to litigate the lawfulness of an alleged discriminatory hiring hall in a representation proceeding. Nor am I willing to con- vert our representation cases to a title VII lawsuit on the basis of allegations that Petitioner has no female business agents or officers and that there is a statisti- cal imbalance with respect to the number of women who are members of Petitioner. Accordingly, the Employer's motions should be de- nied and Petitioner certified. CHAIRMAN MILLER and MEMBER JENKINS, dissenting: Unlike our colleagues, we would find that the Em- ployer has raised substantial questions of fact and law with respect to whether the Petitioner engages in dis- crimination on the basis of sex. Therefore, we would order a hearing to develop all of the relevant facts concerning the Employer's allegations and to afford the Petitioner an opportunity to present a defense to such contentions. In Bekins, we stated that if it is shown that a union 409 fails to fairly represent employees, "we must, in order that our own actions conform to the Constitution, take the drastic step of declining to certify the labor organization." Before this action is contemplated we must have the relevant facts and the parties' conten- tions before us. Accordingly, a hearing to ascertain this information is an absolute necessity. Here, the Employer has proffered prima facie evi- dence which challenges the Petitioner's ability to fair- ly represent employees. The Employer contends, inter alia, that the Petitioner exercises substantial control over the stationary engineering trade in the Chicago area. In fact, the Employer argues that membership in Petitioner is the "sine qua non for obtaining employ- ment" in this field. The Employer contends that the Petitioner has no female officers or business represen- tatives. It also alleges that on the basis of its own survey the Petitioner has no female members. More- over, the Employer points to the Petitioner's bylaws and its group health plan as having the natural effect of discouraging females from attempting to enter the stationary engineering trade in Chicago. In our view, the serious contentions made by the Employer compel that a hearing be held on these issues and that a determination be made on the merits before a certification is issued. Member Kennedy as- serts that the Board should not consider allegations of sex discrimination in a precertification representation proceeding. We disagree. In Bekins, we clearly de- fined our position with respect to the constitutional origin of the duty of fair representation. Since we believe that a labor organization which discourages females from membership would violate its duty to fairly represent all employees, we feel that the Board must consider such allegations in a precerti- fication representation proceeding. In our opinion, the majority is in error in refusing to consider such allegations and in failing to order a hearing to obtain the relevant facts. To issue a Board certification to the Petitioner, notwithstanding prima facie evidence that the Petitioner discriminates on the basis of sex, serves only to erode the well-established principle that a col- lective-bargaining agent must represent all employees fairly. Therefore, for the above-stated reasons, we would order a hearing to determine whether the Petitioner discriminates on the basis of sex.