(what happened, ruling, opinion any dissenting opinions)
Chapter 15 479 CASE 15.1 420 U.S. 50 (1975 ) EMPORIUM CAPWELL CO. V. WESTERN ADDITION COMMUNITY ORGANIZATION Emporium Capwell Co. operates a department store in San concluded that the Company was discriminating, and that Francisco. The company had a collective bargaining agree- it would process every such grievance through to arbitration ment with the Department Store Employees Union. The if necessary. Testimony about the Company's practices was agreement, among other things, included a prohibition of employment discrimination because of race, color, religion, taken and transcribed by a court reporter, and the next day national origin, age, or sex. The agreement also set up a griev- the Union notified the Company of its formal charge and ance and arbitration process to resolve any claimed violation demanded that the joint union-management Adjustment of the agreement, including a violation of the nondiscrimina- Board be convened "to hear the entire case." At the September meeting some of the Company's tion clause. ] employees had expressed their view that the contract procedures were inadequate to handle a systemic grievance Marshall, J. of this sort; they suggested that the Union instead begin This litigation presents the question whether, in light of the picketing the store in protest. Johnson explained that the national policy against racial discrimination in employment, collective agreement bound the Union to its processes the National Labor Relations Act protects concerted activ- and expressed his view that successful grievants would be ity by a group of minority employees to bargain with their helping not only themselves but all others who might be the employer over issues of employment discrimination. ... victims of invidious discrimination as well. The FEPC and On April 3, 1968, a group of Company employees cov- antipoverty agency representatives offered the same advice. ered by the agreement met with the Secretary-Treasurer of the Nonetheless, when the Adjustment Board meeting convened Union, Walter Johnson, to present a list of grievances include on October 16, James Joseph Hollins, Tom Hawkins, and two ing a claim that the Company was discriminating on the basis other employees whose testimony the Union had intended to of race in making assignments and promotions. The Union elicit refused to participate in the grievance procedure. Instead, official agreed to take certain of the grievances and to inves- Hollins read a statement objecting to reliance on correction tigate the charge of racial discrimination. He appointed an of individual inequities as an approach to the problem of investigating committee and prepared a report on the employ- discrimination at the store and demanding that the president ees grievances, which he submitted to the Retailer's Council of the Company meet with the four protestants to work out and which the Council in turn referred to the Company. The a broader agreement for dealing with the issue as they saw it. report described "the possibility of racial discrimination" as The four employees then walked out of the hearing. perhaps the most important issue raised by the employees and Hollins attempted to discuss the question of racial discrimi termed the situation at the Company as potentially explosive nation with the Company president shortly after the incidents corrective action were not taken. It offered as an example of October 16. The president refused to be drawn into such a of the problem the Company's failure to promote a Negro discussion but suggested to Hollins that he see the personnel stock employee regarded by other employees as an outstanding director about the matter. Hollins, who had spoken to the per- candidate but a victim of racial discrimination. sonnel director before, made no effort to do so again. Rather, Shortly after receiving the report, the Company's labor he and Hawkins and several other dissident employees held a relations director met with Union representatives and agreed press conference on October 22 at which they denounced the to "look into the matter" of discrimination and see what store's employment policy as racist, reiterated their desire to needed to be done. Apparently unsatisfied with these repre- deal directly with "the top management" of the Company over sentations, the Union held a meeting in September attended minority employment conditions, and announced their inten- by Union officials, Company employees, and representatives tion to picket and institute a boycott of the store. On Saturday, of the California Fair Employ nployment Practices Committee November 2, Hollins, Hawkins, and at least two other employ- (FEPC) and the local antipoverty agency. The Secretary- ees picketed the store throughout the day and distributed at Treasurer of the Union announced that the Union had the entrance handbills urging consumers not to patronize the480 Part 3 Labor Relations Law store. Johnson encountered the picketing employees, again grievances against racial discrimination, in violation of that urged them to rely on the grievance process, and warned that duty, is an unfair labor practice. . . they might be fired for their activities. The picketers, however, Plainly, national labor policy embodies the principles of were not dissuaded, and they continued to press their demand nondiscrimination as a matter of highest priority . . These to deal directly with the Company president. general principles do not aid respondent, however, as it is far On November 7, Hollins and Hawkins were given written from clear that separate bargaining is necessary to help elimi- warnings that a repetition of the picketing or public state- nate discrimination. Indeed, as the facts of this case demon. ments about the Company could lead to their discharge. strate, the proposed remedy might have just the opposite effect. When the conduct was repeated the following Saturday, the The collective bargaining agreement in this case prohibited two employees were fired. without qualification all manner of invidious discrimination Respondent Western Addition Community Organization, and made any claimed violation a grievable issue. The griev a local civil rights association of which Hollins and Hawkins ance procedure is directed precisely at determining whether were members, filed a charge against the Company with the discrimination has occurred. That orderly determination, National Labor Relations Board. After a hearing the NLRB Trial if affirmative, could lead to an arbitral award enforceable in Examiner found that the discharged employees had believed in court. Nor is there any reason to believe that the processing of good faith that the Company was discriminating against minor- grievances is inherently limited to the correction of individual ity employees, and that they had resorted to concerted activity cases of discrimination. The decision by a handful of employ- on the basis of that belief. He concluded, however, that their ees to bypass the grievance procedure in favor of attempting activity was not protected by Section 7 of the Act and that their to bargain with their employer, by contrast, may or may not discharges did not, therefore, violate Section 8(a)(1). be predicated upon the actual existence of discrimination. The Board, after oral argument, adopted the findings and An employer confronted with bargaining demands from each conclusions of its Trial Examiner and dismissed the com- of several minority groups would not necessarily, or even prob- plaint. Among the findings adopted by the Board was that ably, be able to agree to remedial steps satisfactory to all at once. the discharged employees' course of conduct: Competing claims on the employer's ability to accommodate . . . was no mere presentation of a grievance, but noth- each group's demands, e.g., for reassignments and promotions to a limited number of positions, could or could only set one group ing short of a demand that the [Company] bargain with the picketing employees for the entire group of against the other even if it is not the employer's intention to divide and overcome them. Having divided themselves, the minority employees. minority employees will not be in position to advance their Central to the policy of fostering collective bargaining, cause unless it be by recourse seriatim to economic coercion, where the employees elect that course, is the principle of which can only have the effect of further dividing them along majority rule. If the majority of a unit chooses union rep- racial or other lines. Nor is the situation materially different resentation, the NLRA permits them to bargain with their where, as apparently happened here, self-designated repre- employer to make union membership a condition of employ- sentatives purport to speak for all groups that might consider ment, thereby imposing their choice upon the minority. . . . themselves to be victims of discrimination. Even if in actual In establishing a regime of majority rule, Congress sought bargaining the various groups did not perceive their interests to secure to all members of the unit the benefits of their col- as divergent and further subdivide themselves, the employer ective strength and bargaining power, in full awareness that would be bound to bargain with them in a field largely pre- the superior strength of some individuals or groups might be empted by the current collective bargaining agreement with subordinated to the interest of the majority the elected bargaining representatives. ... In vesting the representatives of the majority with this . . . The policy of industrial self-determination as expressed broad power Congress did not, of course, authorize a tyranny in Section 7 does not require fragmentation of the bargaining of the majority over minority interests. ... We have held, by unit along racial or other lines in order to consist with the the very nature of the exclusive bargaining representative's sta- national labor policy against discrimination. And in the face tus as representative of all unit employees, Congress implicitly of such fragmentation, whatever its effect on discriminatory imposed upon [the union] a duty fairly and in good faith to practices, the bargaining process that th that the principle of exclus represent the interests of minorities within the unit. And the sive representation is meant to lubricate could not endure Board has taken the position that a union's refusal to process unhampered . ...Chapter 15 Collective Bargaining Respondent objects that reliance on the remedies pro- vided by Title VII is inadequate effectively to secure the rights Case Questions conferred by Title VII. ... Whatever its factual merit, this argument is properly What were the complaints of the minority employees addressed to the Congress and not to this Court or the against the company? How did the union respond to their complaints? NLRB. In order to hold that employer conduct violates Section 8(a) (1) of the NLRA because it violates Section Why did the employees reject using the procedures under the collective bargaining agreement? What hap- 704(a) of Title VII, we would have to override a host pened to them when they insisted on picketing the store of consciously made decisions well within the exclusive to publicize their complaints? competence of the Legislature. This obviously, we 3. Did the NLRB hold that their conduct was protected cannot do. under Section 7? Why? Did the Supreme Court protect Reversed. their conduct? Why? Although the employer in J. I. Case and the employees in Emporium Capwell were held properly, there is some room for individual discussions of working conditions t permits individual negotiation, an employer its are the
