Grants Furniture Plaza, Inc. of West Palm Beach, Fla.Download PDFNational Labor Relations Board - Board DecisionsSep 20, 1974213 N.L.R.B. 410 (N.L.R.B. 1974) Copy Citation 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grants Furniture Plaza , Inc. of West Palm Beach, Fla. and Freight Drivers , Warehousemen and Helpers, Local Union No. 390, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner . Case 12- RC-4396 September 20, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE Pursuant to a Decision and Direction of Election issued by the Regional Director of Region 12 on No- vember 7, 1973, an election by secret ballot was con- ducted on December 7, 1973, under the direction and supervision of the Regional Director, among the em- ployees in the unit described below. The tally of bal- lots furnished the parties at the conclusion of the election showed that of approximately 12 eligible vot- ers, 11 valid ballots were cast, of which 8 were for, and 3 against, the Petitioner. Thereafter, on December 14, 1973, the Employer filed timely objections to the elec- tion. On February 13, 1974, the Regional Director issued his Report on Objections and Recommendations to the Board pursuant to Section 102.67 (c) of the Board's Rules and Regulations. In his report, the Re- gional Director recommended that the Employer's objections be overruled. Thereafter, the Employer filed exceptions to the Regional Director's report and recommendation. Upon the entire record in this proceeding,' the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. We find the following employees constitute an appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: carpet warehouse; but excluding sales employ- ees, office clerical employees, guards and super- visors as defined in the Act. In the Employer's exceptions, it argues, inter alia, that the Petitioner is guilty of "an established pattern and practice of discriminatory employment." In sup- port of its contentions, the Employer submitted statis- tical data allegedly showing an imbalance with respect to female and Spanish-surnamed members of Petitioner and the demographic character of the Mi- ami Standard Metropoliton Statistical Area (SMSA).2 Additionally the Employer submitted a copy of a De- partment of Justice complaint which alleged that the Petitioner's International, through its National Mas- ter Freight Agreement (NMFA) and its area supple- ments, perpetuates prior discriminatory practices against blacks and Spanish-surnamed Americans by requiring them to give up their seniority for bidding and layoff purposes if they transfer from service posi- tions to a higher paying road position. As to the Department of Justice complaint, it is our view that mere allegations of wrongdoing do not con- stitute evidence adequate to support an objection, whether in this or in any other context. Evidence must consist of facts, not mere accusations which yet re- main to be proven. To withhold a certification we must be persuaded by affirmative evidence of a factu- al nature, and even to direct a hearing on the basis of an objection there must be prima facie factual proof submitted to our Regional Director of a kind which would be admissible into evidence at a hearing and subjected to evaluation as to its weight and probative force. The unproven allegations of a complaint, whether filed by an individual or by a governmental agency do not constitute proof, or even competent evidence, under well-established rules of evidence. Nor do we find sufficient to warrant a hearing the evidence offered in the form of statistics purporting to show that the labor organization seeking certification here has a membership in which certain minority groups appear in numbers less than the population ratio of such minorities to the total population in the area in which this labor organization operates. No evidence was proffered here to show that the Peti- tioner, through a hiring hall or other means, exercises All full-time and regular part-time warehouse- men, drivers and driver helpers, receiving and shipping clerks, and maids employed by Grants Furniture Plaza, Inc. of West Palm Beach, Fla., at Employer's store, accessory warehouse, and 1 The Employer's request for oral argument is hereby denied , as the record and the briefs adequately present the issues and positions of the parties. 2 The Employer argues that the affidavit of Travis Dumas, president of Petitioner , states that the percentage of minority members to white members are as follows; approximately 12-1/2 percent Spanish and 12-1/2 percent female . Moreover, the Employer contends that the "General and Social Economic Characteristics of Florida," as compiled by the United States Department of Commerce , Social and Economics Statistics Administration, Bureau of Census, indicates that, for the Miami area , the percentage popula- tion of Spanish and Spanish -surnamed individuals is 26 .6 percent, the per- centage of available females in the work force in the Miami area is 49.2 percent. GRANTS FURNITURE PLAZA, INC. any control whatsoever over the racial, sexual or eth- nic composition of those who enter the work force and, thus, those who are or may become its members. In the absence of such evidence we must assume that the employers in the area exercise the true control over the selection of the work forces, and that only after the employer selection process has been effective do employees normally either voluntarily seek mem- bership in the union or, in some instances, do so as required under the terms of a valid union-security agreement. Without passing, therefore, in this case, upon the appropriate weight to be given statistical data as to the racial or ethnic composition of the Union's member- ship in a setting wherein evidence is offered to show either that the Union controls or substantially influ- ences access to employment, or deliberately restricts access to its own membership rolls, we conclude that it would be improper to draw any inferences of union propensity for discrimination on the sole basis of such statistical evidence in the instant setting. We therefore conclude in agreement with the Regional Director that this statistical evidence standing alone is insuffi- cient to warrant the holding of a hearing. Accordingly, as we find the evidence insufficient to disqualify the Petitioner from receiving a Board certi- fication, and as the Petitioner has received a majority of the valid votes cast, we shall certify the Petitioner as the collective-bargaining representative of the em- ployees in the unit found appropriate herein. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Freight Drivers, Ware- housemen and Helpers, Local Union No. 390, an af- filiate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor orga- nization is the exclusive representative of all the em- ployees in the unit found appropriate herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other condi- tions of employment. MEMBER KENNEDY , concurring: I agree that the Employer's objections to the elec- tion should be overruled and a certification of repre- sentative should be issued in this case. In Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB No. 7 (1974), I indicated that the Board's in- quiry in a precertification representation proceeding involving the issue of unlawful discrimination by a labor organization should be no broader than is con- 411 stitutionally required. I believe the Board must enter- tain allegations that a labor organization excludes persons from membership on the basis of race, alien- age, or national origin. I also stated in Bekins and in Bell and Howell Co., 213 NLRB No. 79, that until the proposed 27th amendment to the Constitution is adopted by the re- quisite number of States, or until the Supreme Court determines that classifications based on sex are inher- ently suspect,' the Board should not consider allega- tions of sex discrimination in a precertification representation proceeding. Thus, I will not address myself to the issue of sex discrimination raised by the Employer in this case because it is raised prior to the issuance of a certification by the Board. However, even if I believed that the Constitution compelled consideration of alleged sex discrimination by a union before certification, I would not find that the Employer has shown that the Petitioner involved herein has engaged in such discrimination. Standing alone, I do not believe a statistical imbalance with respect to the percentage of women members of Peti- tioner in contrast to the percentage of women in the Miami area is prima facie evidence of unlawful dis- crimination. For the same reason, I do not believe the Employer has presented prima facie evidence of un- lawful discrimination with respect to Spanish-speak- ing individuals. Statistics as to the race, sex, or national origin of members of a union are not persuasive evidence, standing alone, that a union engages in discrimination on any of those bases. Such statistics may only reflect the race, sex, and national origin of the employees hired by employers in the bargaining units which the union represents. The ultimate control over the hiring of employees in those units rests with the employers. Yet, if the union is the certified or recognized bargain- ing agent for the units, it must represent all of the employees. Therefore, particularly where a union-se- curity clause is present, the composition of the union membership may only be a reflection of several em- ployers' hiring policies and not evidence of a pattern or plan of discrimination by a union. Merely examin- ing statistics concerning union members in such in- stances would not be meaningful in the absence of other evidence indicating discrimination by the union. In summary, I would not regard statistics alone, such as those presented here, as a reliable indication of discrimination in union membership. It would be untenable, in my view, to rely solely on statistical imbalances as evidence of union discrimination. Such 3 See Kahn v. Shevin, Attorney General of Florida, et al., 416 U.S. 351 (1974), and Geduldig v. Aiello, 417 U.S. 484 (June 17, 1974). 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD imbalances may be nothing more than a reflection of the total composition of bargaining units which the union is obligated to represent. Finally, I am not persuaded that the issuance of the complaint by the Department of Justice against the Petitioner's International alleging contract discrimi- nation based on race and national origin is prima facie evidence that such discrimination does , in fact , exist. It is a relevant consideration , but here it concerns contractual provisions which, if the allegations prove to be true, may show a breach of the union 's duty to fairly represent all employees . But the duty of fair representation arises from the statute as an obligation imposed on a collective-bargaining representative to deal with all the employees it represents fairly. A union which enjoys the right created solely by statute to represent exclusively a unit of employees also bears the burden of representing those employees fairly. As I stated in Bekins Moving & Storage, I view this right of a union to be an exclusive collective-bargaining representative to be derived from the Act and the concurrent obligation of the union to be bound to a duty of fair representation also to derive from the Act. I do not view either of these rights or obligations to have their origin in the Constitution. For that reason, the Department of Justice complaint concerning con- tract terms has more relevance in a postcertification inquiry after the duty of fair representation has at- tached. MEMBERS FANNING and PENELLO, concurring: We concur in the result for the reasons stated in our dissenting opinion in Bekins Moving & Storage, supra. Copy with citationCopy as parenthetical citation