The Emporium Capwell Company (Company) operates a department store in San

Francisco. At all times relevant to this litigation it was a party to the collective-bargaining

the agreement negotiated by the San Francisco Retailer's Council, of which it was a

member, and the Department Store Employees Union (Union), which represented all

stock and marketing 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 anti-discrimination clause.

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 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 potentially

explosive if corrective action were not taken. It offers 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

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 anti-poverty 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 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

anti-poverty agency representatives offered the same advice. Nonetheless, when the

Adjustment Board meeting convened on October 16, James Joseph Hollins, Torn

Hawkins, and two other employees whose 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.

...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. Johnson 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.

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.

When the conduct was repeated the following Saturday, the two employees were fired.

[T]he 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 S 8(a)(1).

The Board, after oral argument, adopted the findings and conclusions of its Trial

Examiner and dismissed the complaint. 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.

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."

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....The

issue, then, is whether such attempts to engage in separate bargaining are protected by

7 of the Act or proscribed by 9(a).

Central to the policy of fostering collective bargaining, where the employees elect that

course, is the principle of majority rule. If the majority of a unit chooses union

representation, the NLRB permits it to bargain with its employer to make union

membership a condition of employment, thus, imposing its choice upon the minority.

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. Second, it undertook

in the 1959 Landrum-Griffin amendments 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. 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....

The decision by a handful of employees to bypass a grievance procedure in favor of

attempting to bargain with their employer...may or may not be predicated upon the

actual existence of discrimination. An employer confronted with bargaining demands

from each of several minority groups who would not necessarily, or even probably, be

able to agree to remain real 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....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. 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. The

potential for conflict between the minority and other employees in this situation is

manifest. With each group able to enforce its conflicting demandsthe incumbent

employees by resort to contractual processes and minority employees by economic

coercionthe probability of strife and deadlock is high; the making headway against

discriminatory practices would be minimal.

* * *

Accordingly, we think neither aspect of respondent's contention in support of a right to

short-circuit orderly, established processes 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.

CASE QUESTIONS

1. Why did the picketers think that the union's response had been inadequate?

2. In becoming members of the union, which had a contract that included an

antidiscrimination clause along with a no-strike clause and a no-lockout clause,

did the protesting employees waive all right to pursue discrimination claims in

court