EMPORIUM CAPWELL CO. v. COMMUNITY ORG.

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Argument of Lawrence G. Wallace

Chief Justice Warren E. Burger: We'll hear arguments next in 73-696, Emporium Capwell Company against Western Addition Community and the Labor Board's related petition.

Mr. Wallace.

Mr. Lawrence G. Wallace: Mr. Chief Justice and may it please the Court.

With a possible limitation to which I shall refer in a moment, the question decided by the National Labor Relations Board in the Court of Appeals in this case and presented in the petitions for certiorari granted by this Court, is whether under the National Labor Relations Act, interpreted in light of Title VII of the 1964 Civil Rights Act, it is an unfair labor practice for an employer to discharge dissident employees for engaging in concerted activities designed to force the employer to bargain collectively, directly with them, instead of with the exclusive bargaining representative, over alleged racially discriminatory employment practices.

The company here, the petitioner in the number 73-696, is a retail department store which is a party to a collective agreement and that agreement contains an anti-discrimination provision set forth on page 101 of the printed appendix under Section 21 of the Collective Agreement.

You'll note that the anti-discrimination provision of the contract prohibits discrimination by reason of race, color, creed, national origin, age or sex.

There's a potential there for many and probably most employees in a bargaining unit therefore to belong to one or another minority group in those categories.

In a series of meetings held in 1968, a group of employees covered by the agreement, including Messrs Hawkins and Hollins, the two whose discharge is the subject of the decision here, met with their Union representative to discuss various dissatisfactions they had with the company, including their belief that there was racial discrimination in the company's employment practices.

At the third meeting, the Union representative expressed his view that there indeed was racial discrimination and that the Union was prepared to invoke the grievance procedures under the collective agreement to remedy discrimination, in accordance with those procedures.

At that third meeting, some of those in attendance said that they would prefer if the Union would picket the company.

They expressed dissatisfaction with the remedy that the Union was proposing to pursue.

The Union representative, the Chief Executive Officer of the Union rejected this request on the ground that it would be contrary to the Union's obligations under the collective agreement to the company.

And that in his view, an orderly processing of grievances would have a broader and more long lasting effect.

And on the following day on behalf of the Union, he formally requested a hearing before the Adjustment Board which is the first step in processing the grievances.

And the hearing was convened in October of that year and it started off with presentation of evidence by the Union representative by questioning employees regarding their individual grievances.

This was interrupted by employee Hollins, one of the two who was discharged, who acting as spokesman for Hawkins, the other one before the Court and two others, read a prepared statement objecting to the prosecution of grievances on an individual rather than a group basis and stating that this group of four would not speak as individuals but would speak only as a group and he added that they wanted to talk with the president.

As he put it their main purpose was to talk to the president to try to reach an agreement with him to straighten out the problems and conditions of the store.

Then after refusing to give testimony, the four walked out of the Adjustment Board meeting.

The grievance procedures nonetheless were carried forward and resulted in promotions being secured for two individuals as to whom grievances had been pursued.

And this part of the record is the basis for the finding of the National Labor Relations Board on Page 103 of the Appendix to the petition.

That --

Justice William J. Brennan: Excuse me Mr. Wallace, which color was it?

Mr. Lawrence G. Wallace: This is the dark yellow one, the appendix to the petitioner.

Justice William J. Brennan: Page?

Mr. Lawrence G. Wallace: Page 103.

The finding of the Board here, it was the finding of the hearing examiner adopted by the board, just below the middle of the page.

All the evidence indicates that the Union, their dully designated bargaining representative was endeavoring in every way available to it under the agreement to adjust any and all cases of racial discrimination brought to its attention.

And there at least one and apparently two cases have brought about the desired adjustment.

And to this, the board added in a footnote on Page 55 of the same Appendix, in Footnote 2 of the Board's order.

And the Board added that the record before us neither requires nor allows the finding that the Union breached its duty of fair representation.

So what the Board might have done in a case in which it had been determined, either previously or in the Board proceedings that the Union had breached its duty of fair representation is a question that the Board really did not reach in this case and is the additional limitation on the question presented that I mentioned at the outset of my argument.

Justice Potter Stewart: I don't seem to have that petition Mr. Wallace, which is certainly not your fault.

I have the -- this petition for certiorari.

Different color from your --

Mr. Lawrence G. Wallace: Perhaps it's found in a different color, but it could be the same petition.

It's the petition of the Emporium Capwell Company.

Justice Potter Stewart: Yeah, well --

Mr. Lawrence G. Wallace: It might have a different color.

Justice Potter Stewart: Alright.

Chief Justice Warren E. Burger: On what page of that petition -- the darker petition?

Mr. Lawrence G. Wallace: At 103 is the Board's finding that the Union was endeavoring in every way available to it under the agreement to adjust any and all cases of racial discrimination brought to its attention.

And then on page 55 in Footnote 2 is the further statement by the Board that the record neither requires nor allows the finding by the Board that the duty -- that the Union was in breach of its duty of fair representation.

Justice Potter Stewart: And now, I don't find that on Page 55.

Mr. Lawrence G. Wallace: Well it's in Footnote 2, I am summarizing it slightly.

The second line starting at Page 55, Footnote 2 of the Board's order --

Justice Potter Stewart: I see it now, thank you.

So that's the qualification that you mentioned at the outset of the limitation --

Mr. Lawrence G. Wallace: That is correct Mr. Justice.

Justice Potter Stewart: I--

Mr. Lawrence G. Wallace: The Board really has not passed on what the result would be in a situation where there had been a finding that the Union was in breach of its duty of fair representation, and counsel for the Board really can take no position on the matter that the Board hasn't passed on.

The board was divided three to two in this case.

Justice Potter Stewart: Right.

I thought you were going to maybe mention the fact that you and your adversaries don't seem to agree as to what the question actually is in this case?

Mr. Lawrence G. Wallace: Well, that's why I mentioned at the outset the question that the Board and the Court of Appeals decided and which was presented in the petitions in what we thought was the question here.

There is some effort in some of the briefs on the other side and there are many of them, to an effect attack the Board's findings --

Justice Byron R. White: Or ignored?

Mr. Lawrence G. Wallace: -- as to the objective of the activities for which these two people were fired.

Justice Byron R. White: At least to ignore them.

And that's -- and the finding of the Board in that respect was accepted by the Court of Appeals?

Mr. Lawrence G. Wallace: It was accepted very emphatically by the Court of Appeals.

Well, at least explicitly, let me put it that way, and this is in again the appendix to the petition for certiorari on Page 24 in Footnote 34.

Page 24, Footnote 34, the second sentence, the petitioners dispute the Trial Examiner's findings that Hawkins and Hollins activities were “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.”

However, we can see no reason to disturb this finding.

And the dissenting judge was even more emphatic on that point.

Judge Wyzanski on page 43 of the same appendix as he put it in the fourth line there, there could not be a plainer instance of an attempt to bargain respecting working conditions as distinguished from an adjustment of grievances.

There are -- of course, at first, we contend that there is no reason before the Court to undertake to look behind these findings supported by all three Court of Appeals Judges, but there is -- what support there is, the record is rather thin on this.

It all seems to us to look in this direction, part of it where the statements made before the Adjustment Board indicating that their objective was to bargain with the president about conditions at the Emporium.

And during the hearing, turning to the other appendix now, on Page 11, Mr. Hawkins, in the middle of the page in response to the question, “What were you seeking” said, “to try to talk to the top management to get better conditions for the Emporium.”

How you are going to do this, through group talk and through the president if we could talk to him?”

And then when Hollins was testifying, on Pages 60 and 61, he tried on Page 60 to explain why at the Adjustment Board proceedings, they objected to taking up individual grievances rather than the case as a whole and after he explained it in several different ways, interrogating counsel says to him, just to carry it one step further, “It was my understanding that what you were trying to do and you didn't want a solution of the problems of individuals, you wanted some basic change that would benefit the treatment of all minority people, is that right” and the answer is, that's correct.

And then on Page 67 as he testifies further at the very bottom of the page, he reiterates that statement.

I said that we didn't want to have our case taken as an individual thing, as I stated before.

We all wanted to take it as a whole for the entire betterment of the minority groups of black, brown, red and yellow people there at the store.

And while the exact objectives and demands, they are not stated anywhere with a model of clarity, there is one indication in one of the exhibits to the record that begins on Page 115 in the same appendix of the sort of thing that they apparently had in mind.

This was a report that was prepared by these individuals and some of those working with them on a survey that they took of the store in between the time of the press conference and the time when they were fired after the two picketing incidents.

And in the course of this survey, on Pages 116 and 117, there is a listing of 16 high fashion departments in which they were either all white sales personnel or only a small number of others, and then point E on Page 117, -- well, there's point D, out of the total blacks, Filipinos, Chinese and Mexican, only five are black, three Filipino, three Chinese and one Mexican.

We demand that all of these specific racial groups be infiltrated into the areas where the commission is the highest, the second floor.

And again on Page 118, we demand selling personnel of the following Racial groups to be infiltrated into the following the high commission selling areas; radio, tape recorders, the whole furniture department, etcetera.

This is as specific as anything in the record about the kind of thing they had in mind in asking to see the president in holding their press conference which stated that they were organizing a boycott of the store because of its racist policies.

And then in picketing the store there's some dispute about the characterization of their activity as picketing.

They were acting in concerts, standing at the store entrances, giving out leaflets urging passersby at the store entrances not to patronize the store.

This was characterized by both the Board and the Court of Appeals as picketing, and correctly in our view, although, the respondent disputes whether it was indeed picketing.

Now, the Board's finding is the essential premise for its decision here and it simply has not reached an issue of what would be the case if this kind of coercive activity was undertaken to support a demand that the company deal with them about grievances.

The distinction became --

Justice Byron R. White: Is that -- Mr. Wallace, is that issue settled, let's assume there was not a racial tinge to this case.

That there must have been instances where individual members of the bargaining unit do picket or have picketed to support the resolution of a grievance in their behalf or when the Union is negotiated wages and hours, and working conditions, the Union as a Union isn't -- doesn't call and have a picket line or doesn't strike, but individual employees do.

They don't strike, but they picket on their own time.

Mr. Lawrence G. Wallace: Now there are wildcat strikes --

Justice Byron R. White: Well, it isn't a strike, just a picket?

Mr. Lawrence G. Wallace: In many of the cases have been about wildcat strike.

My understanding of this is that there has been really not much litigation on this because Section 9 (a) which is the section at issue which designates the rights of the exclusive representative, and then has a proviso saying that individuals, including groups of individuals can however present their own grievances has been taken by the Board to define rights as between the individuals and the Union and not as defining a duty on the part of the employer to bargain with the individuals pressing the grievances.

Justice Byron R. White: So you are saying that outside of the context in which this case arises, it is not settled whether the activities I refer to are protected activities --

Mr. Lawrence G. Wallace: That is, that is correct.

Justice Byron R. White: -- under 8 (a) or under 7?

Mr. Lawrence G. Wallace: My understanding is that a complaint, a charge that the employer refused to bargain with the individuals who demanded it, is not processed by the General Counsel as a compliant because he doesn't regard 9 (a) is imposing any duty on the employer --

Justice Byron R. White: But why the employer is requiring his employees for doing what I suggested he was doing?

Is that an unfair -- is that settled that that is or isn't an unfair practice?

Mr. Lawrence G. Wallace: I don't believe that is settled.

There has been litigation about wildcat strikers in which the circuits have split about whether the strike is --

Justice Byron R. White: I don't think -- it might be one thing to say that the individual employees aren't entitled to bargain with the employer, but it might be another thing to say to fire them.

Mr. Lawrence G. Wallace: So far as I know, the Board has not passed on that issue.

Justice Byron R. White: Well certainly it's passed -- it's passed order in this case?

Mr. Lawrence G. Wallace: Well, it doesn't regard this case as a case of --

Justice Byron R. White: But this is a case of picketing to gain bargaining rights --

Mr. Lawrence G. Wallace: That's right, rather than to get the employer to talk about individual grievances.

So it doesn't regard the issue as having been presented in this case.

Justice Potter Stewart: The Larry case that is argued by your brothers on the other side including a good many amici and including indeed the exclusive collective bargaining agent in this case, is that right?

Mr. Lawrence G. Wallace: That is correct.

However, the AFL-CIO to which it belongs is found in the amicus brief addressing the case as we see it --

Justice Potter Stewart: Right, I know that.

Mr. Lawrence G. Wallace: -- coming out on the other side.

Well, all of this leads to a summary of the reasons why we believe the Board's decision was the correct one in this case.

In the first place, the principle that would support the right to engage in this demand for bargaining is a principle of fragmentation.

These individuals are self designated.

They hold no credentials indicating any authorization by the people they purport to represent to bargain for them.

There would be nothing to stop any number of other individuals to come -- from coming forward and saying that they too want to bargain on behalf of this same group of employees or portions of them, nor would there be any -- the reason why the same principle should not apply to other groups who have statutory or contractual protection against discrimination, such as the women, the elderly, etcetera.

Justice Byron R. White: Mr. Wallace, could you tell me again, I probably missed it.

Why in the Board's view the effort of individual employees to bargain with the employer over a grievance and to support their effort by picketing is not within the exception to 9 (a)?

Mr. Lawrence G. Wallace: Well that's -- that --

Justice Byron R. White: Let's assume individual employees are picketing to have the employer adjust a grievance in a particular way and the Union is also grieving with the employers.

Now, why aren't the employees privileged to do that?

Mr. Lawrence G. Wallace: Well, they are privileged under 9 (a) to meet with the employer, to try to adjust their grievance with them, and that doesn't under the proviso to 9 (a) derogate from the authority of the Union.

But the Board has never regarded 9 (a) as imposing a duty on the employer to meet with them and the cases tend to regard the picketing like they regard the wildcat strike and the question is being whether it's in support or not of what the Union is trying to accomplish --

Justice Byron R. White: You mean -- they not be guilty of the refusal the bargain, he refuses to bargain, but how about being guilty of an unfair practice, if he fires the employee for exercising what is the privilege under 9 (a)?

Mr. Lawrence G. Wallace: Well, there is no question that they have a right under 9 (a) to do with the meeting with the employer if he'll meet with them --

Justice Byron R. White: Well, what does the employer --

Mr. Lawrence G. Wallace: -- and that doesn't take away anything that the Union gets in Section 9.

Justice Byron R. White: So what -- so, what did the employer fire these people for here, something beyond what's guaranteed to do them in 9 (a) which is --

Mr. Lawrence G. Wallace: It's completely --

Justice Byron R. White: Which is what?

Mr. Lawrence G. Wallace: Well the 9 (a) is limited to presenting grievances and the Board found that this wasn't an effort to present grievances.

This was an effort to bargain about --

Justice Byron R. White: About what?

Mr. Lawrence G. Wallace: -- conditions throughout the store on behalf of all minority people and obviously to bargain about things that will effect others as well.

Justice Byron R. White: If these people have wanted just to bargain with him about their own status?

Mr. Lawrence G. Wallace: That would be a different case which the Board has not passed on.

Chief Justice Warren E. Burger: Even if it affected other employees?

Mr. Lawrence G. Wallace: Even if it affected other employees, the case would be presented in quite a different context.

If they were claiming that they were denied a promotion or that they were -- that the restroom on their floor was not maintained in working order, these things could affect other employees, but they would be individualized grievances about something denied to these individuals.

They would not be purporting to be acting on a representative capacity on behalf of a large number of others who haven't authorized them as a bargaining representative to negotiate about matters that don't affect them, the negotiators themselves individually or anyone who is authorized them to speak for them.

They are seeking to bargain in a representative capacity about conditions throughout the store, about who should be selling high priced ladies coats and that sort of thing, which has nothing to do with any grievance that any of them has.

And this is the difference between the bargaining and adjustment of grievances.

The line is sometimes a difficult one, but we don't think it's a difficult one in this case.

Chief Justice Warren E. Burger: Do you think that when the Board supplied its experience and resolved this then it settles it pretty much?

Mr. Lawrence G. Wallace: Well, of course the Board is very experienced in this kind of fact finding.

This is one of the areas in their specialization and expertise.

And here, their findings were upheld by all three Court of Appeals Judges and they are supported by the record in the portions to which I have referred.

And in our view, the Court of Appeals underestimated here in seeking to in some way accommodate the normal outcome under the National Labor Relations Act with what it regarded as the policies of Title VII, underestimated the very real potential for interference with the role of the bargaining agent in authorizing others to speak for portions of the people covered in talking about what remedies should be adopted even if there is agreement between the bargaining representative and the dissidents that the discrimination exists.

Justice Thurgood Marshall: Well Mr. Wallace under 9 (a), that -- it really means nothing to it -- if the management does not want to discuss it, 9 (a) means nothing?

Mr. Lawrence G. Wallace: Well, that something that so far as I know the Board hasn't passed on and that leaves me in a position where I can't make a commitment on behalf of the Board.

Justice Thurgood Marshall: So if the employees told the management we want discuss this and management says we don't want to discuss it, there is no means available for the employee to do anything?

Mr. Lawrence G. Wallace: Well, I think their usual recourse is to get the Union to do it on their behalf because the employer has to discuss things with the Union.

That's their --

Justice Thurgood Marshall: Well, I understand and basically when the Union won't do it?

Mr. Lawrence G. Wallace: Well, sometimes the Union is willing to do it.

Justice Thurgood Marshall: Well if the Union is willing to do it, then management is willing to talk to them, employee is just out?

Mr. Lawrence G. Wallace: The Board has not decided that.

I can't really answer the question.

It's still an open question.

Justice Thurgood Marshall: My difficulty is in thinking that Congress would put 9 (a) in there and end up with not giving them any relief at all?

Mr. Lawrence G. Wallace: Well, it's certainly a possible reading of 9 (a) because it's quite possible that the Union is trying to adjust grievances in one way and that some dissident employees want them adjusted in another way and we'll start engaging in coercive tactics on the employer that are contrary to what the Union is seeking to accomplish in the grievance proceedings.

And that could be very damaging to the employer, such as urging shoppers on a Saturday not to patronize the employer's store and 9 (a) doesn't necessarily mean that Congress meant to sanction that activity and to protect those employees from being discharged, if they insist on doing that.

It does mean that they have a right to talk with the employer about it if the employer is willing to make the adjustments with them, and that that is a proviso to the exclusive authority of the Union otherwise has.

Justice Thurgood Marshall: Well, if the employer talks to the dissident Union member, facing facts, wouldn't the employer be in trouble with the Union?

Mr. Lawrence G. Wallace: I think that varies with the situation.

In any event, my time has expired here.

I do want to refer the Court to the legislative history of Title VII and to the other remedies available as well as to the fact that nothing in Title VII purports to speak to a collective bargaining rights or to the question of picketing for which there is no reference, no legislative history of Section 704 (a).

Justice Harry A. Blackmun: Mr. Wallace, before you sit down, am I correct in understanding that your argument as to 8 (b) 7 (a) was not raised below?

Mr. Lawrence G. Wallace: Well, it was not raised below.

It was nothing relied upon by the Board.

The Board did not find a violation here of 8 (b) 7 (a).

We're pointing out that the fact show a violation of 8 (b) 7 (a), and therefore that the Board's interpretation of Section 7 is not protecting this activity, is really the only permissible interpretation under the Act because Section 7, wouldn't protect something that violates 8 (b) 7 (a).

We're not saying that the case should be upheld on the theory that it was a violation of 8 (b) 7 (a).

That is not a ground that the Board relied upon and that the Board found, but it's in the picture, it's certainly relevant to construing the meaning of the other provisions of the Act.

I don't think the Court can ignore it.

Chief Justice Warren E. Burger: Thank you Mr. Wallace, Mr. Bahrs?

Argument of George O. Bahrs

Mr. George O. Bahrs: Mr. Chief Justice and may it please the Court.

I'm not going to repeat or elaborate upon the argument of counsel for the Board.

I would like in the limited time available to me to point out some of the difficulties and some of the unanswerable questions that have been raised by the decision below.

When parties undertake to bargain collectively, they must first understand clearly what employees are under discussion, and secondly, who in fact represents those employees.

This requires the answer to three questions.

Number one, what is the appropriate unit?

Number two, who are the eligible voters?

And number three, what representative do they choose?

Now merely because this case involves bargaining with respect to racial or minority problems does not eliminate those questions.

In fact, it makes them even more difficult.

We know that Hawkins and Hollins in this case purported to represent all minorities, yellow, red, black and brown.

They made no mention of persons discriminated against on the grounds of sex or religion as specified in Title VII and that raises a question as to what is the appropriate unit for purposes of bargaining in this case.

Should it be the entire group of minority employees or should the employer be required to bargain by each color?

Further, should the colors be divided into nationalities?

Section 9 (b) of the Labor Management Relations Act declares that the Board shall decide in each case whether in order to assure employees the fullest freedom in exercising the rights guaranteed by the Act, the unit shall be the employer, the craft unit, the plant unit or subdivision thereof.

There is no mention of race or color or minority, and that's a pretty good argument that Congress did not intend that there should be collective bargaining along racial or minority alliance.

The point is that the Congress declared that the Board shall decide this question in each case and it shall decide it so as to provide the employees with the maximum freedom of exercising their rights guaranteed to them under the statute.

There is no way in which a decision could be obtained in this case, because any petition to the Board would be rejected on the ground that the employer had already recognized a representative and had a contract with them.

It is not up to the employer to decide what shall be the appropriate unit.

The next question is, who are the eligible voters?

Whether we take the unit by color, by race, there must be a decision as to what persons belong in each group, and in these days of interracial marriages and mixed parentage, there are extremely difficult and complex problems in determining what race or color a person belongs to.

There is no machinery provided for a determination of the question of the eligibility list of voters that the employer can safely rely upon in order to undertake bargaining.

Finally, there is no method provided for taking a vote of the employees to decide on what representative they wish to have represent them.

It would be folly for the employer in this case to assume that Hawkins and Hollins represented the entire minority group or even the blacks employed in the store.

The Trial Examiner pointed out that when the Adjustment Board hearing took place, there were four men who walked out of the Adjustment Board hearing and joined the picket line.

After the employer issued its warning against the picketing and leafleting, two of the employees desisted and there were only Hawkins and Hollins left, not a very impressive presentation to convince the employer that they represented any substantial number of minority employees.

The record also shows that in the meeting that the Union held, with the minority employees, representatives of the EEOC and the state FEPC urged the minority employees to go along with the Union and that it was in their best interest, and we believe the employer was entitled to express sufficient doubts about bargaining with Hawkins and Hollins to refuse to do so.

Assuming that we waive all the difficulties raised by those procedural questions, we have that problem of what the employer is supposed to do in order to try that comply with the opinion of the court below.

And if the Court pleased, this is the first case to my knowledge where any employer has been directed to recognize two collective bargaining representatives representing the same employees at the same time.

That's not easy to do.

The Court suggested that -- I'd like to read from the language of the Court “we cannot agree that any inconvenience --

Chief Justice Warren E. Burger: What page are you on now, Mr. Bahrs?

Mr. George O. Bahrs: I'm sorry.

It's our -- the petition for certiorari on Page 29.

“We cannot agree that any inconvenience which a company might experience in being required to bargain with the minority here, while still participating in the grievance procedures, justifies withdrawing Section 7 protection from these concerted activities.”

Now aside form the problem of dealing with two bargaining representatives at the same time, the notion of carrying out the grievance procedures is a futility because of the fact that the principal witnesses walked out and refused to participate.

When it comes to bargaining with the representatives of the minority, I would refer the Court to what it said in its opinion in Alexander against Gardner-Denver.

In that case, the Court held that an arbitration under a collective bargaining agreement did not bar an action in court to correct racial discrimination, but when it came to the subject of bargaining on the subject of discrimination, this is what the Court said, “Title VII strictures are absolute and represent a congressional command that each employee be free from discriminatory practices.

Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII.”

That is a statement by the unanimous court.

Now Hawkins and Hollins were picketing the employer, to compel the employer to bargain with them concerning racial discrimination.

Justice Byron R. White: I think it -- you must be urging that even though the employer need not bargain, needn't say a word to the picketing group that because it need not bargain, that the employer may fire those who were picketing?

Mr. George O. Bahrs: No, I'm not saying that.

If the Court --

Justice Byron R. White: What the -- what the containable position would the employer be in if he needn't bargain at all, but he couldn't fire picketers?

Mr. George O. Bahrs: Well, the picketers were fired primarily because of a violation of the Jefferson Standard case.

In other words, while they are on the payroll or the employer deliberately attempting to damage and injure the business of the employer, this Court has declared that the principle of loyalty of an employee demands that if he is going to try to fight with the employer, he ought to get off the payroll and that's what these men did not do.

Chief Justice Warren E. Burger: Or do it through the Union?

Mr. George O. Bahrs: Or do it through the Union, yes Your Honor.

Justice William H. Rehnquist: So this case would be different if the people had gone on strike and left the payroll?

Mr. George O. Bahrs: Your Honor, we are in a middle of a contract.

There were some questions asked earlier about picketing or bargaining.

It's my understanding of the law that the purpose of collective bargaining is to have a contract where you settle all questions.

You don't bargain during the middle of a contract.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Bahrs.

Mr. Hecht.

Argument of Kenneth Hecht

Mr. Kenneth Hecht: Mr. Chief Justice and may it please the Court.

Before starting on my own presentation, I would like to respond briefly to some of the points that preceding counsel had made and some of the questions which have been asked by the Court.

Let me take them in reverse order.

I think it's clear that the Jefferson Standard question is not here before the Court at this time.

That was the issue upon which the Court of Appeals remanded to the Board to determine whether there had been such a display of disloyalty that the employees ought not to be rehired, but the Court recognized that the Trial Examiner who wrote the decision which the Board adopted, while he had made extensive findings of fact, had declined to rule on the issue and on that basis, the Court of Appeals refused to rule on it either.

I think it's not been raised in the petitions for certiorari, and it is not before the Court at this time.

I trust from my briefs that it's clear that we are not here advocating collective bargaining according to race.

It's quite the opposite.

It's the purpose of our position to encourage unions and management to be more responsive to the problems of minorities and to solve those problems within the framework of collective bargaining.

Courts have said, we think it's correct, that there cannot be strong concerted Union activity so long as the employees are divided.

That would be the case if the Union had no responsibility, if the employer had no responsibility.

We think what we are urging upon the Court is a method by which minorities can be accommodated by which statutes can be accommodated so that industrial peace will continue.

Chief Justice Warren E. Burger: Would you make all of these same arguments, Mr. Hecht if the whole episode, it involved two women who were picketing against alleged discrimination against women?

Mr. Kenneth Hecht: If the women engaged in their concerted activities on a good faith of belief as the Court found, if the women had attempted to go through the Union, for seven months, Hollins and Hawkins tried very hard to use the processes which the Union controlled; that is to say the grievance process.

It proved to be a futile attempt and at that point reluctantly Hollins and Hawkins with the advice of the Union that what they intended to do was not unlawful, did not violate the terms of the contract abandoned the Union.

If the women had the strong statistical support for their claims that we knew it was a good faith claim, then I think the answer is yes, we would make exactly the same position.

Chief Justice Warren E. Burger: Then your answer would probably be the same if we hypothetically suggested Catholics, catholic employees as a group or any other identifiable --

Mr. Kenneth Hecht: Mr. Justice Burger, if all of the facts which I've listed before were present, if there were discrimination and a good faith belief that the employer was discriminating on the basis of race for instance, or religion as you have suggested, yes, our answer would be the same, we think that's what the law requires.

I think it important to remind the Court that this case involves a discharge.

It does not involve a refusal to bargain.

No one has made that charge.

It's really not before the Court.

What is before the Court is the employer's ability to fire these two employees for having engaged in the concerted activity in which they engaged.

Justice Byron R. White: You think it's the Title VII factor that makes a difference, absent Title VII, absent the racial dimension to the case the discharge would have been proper under Jefferson Standard?

Mr. Kenneth Hecht: No, not at all Your Honor.

We've not argued the Jefferson Standard issue in our brief to this Court because we didn't believe it was appropriate.

Justice Byron R. White: Well, you say you don't rely on Title VII at all?

Mr. Kenneth Hecht: No, I did not say that.

We think that Title VII --

Justice Byron R. White: Do you think Title VII makes a difference or not?

Mr. Kenneth Hecht: No, it does not make a difference.

It makes it crystal clear, but we have argued in our briefs that the National Labor Relations Act itself prohibits discrimination in employment and protects concerted activity of employees.

Justice Byron R. White: Well that's absence of Title VII?

Mr. Kenneth Hecht: Absolutely, absence of Title VII.

Justice Byron R. White: But it's not absence of the racial factor?

Mr. Kenneth Hecht: It is not absent the racial factor.

Justice Byron R. White: Absent a racial factor would the discharge for picketing by a minority where there is or isn't an exclusive bargaining agent, is a discharge for picketing an unfair practice?

Mr. Kenneth Hecht: Let me try to break the question down for a minute if I can.

In this case, we've alleged that what the employees have done was to seek parity, that is to say they have sought what the contract as well as statute requires.

There is a Nondiscrimination Clause in the contract.

The employees here sought to implement that provision, that was their purpose.

We've also argued that picketing is not involved here.

While the Board and the Court did draw the conclusion that the employees had picketed and there is no sense trying to hide that, the facts also show that what the employees did was to distribute handbills; there is no sense hiding that either.

We believe it is appropriate for this Court to look at the facts and to draw the proper legal conclusion based on those facts, and the facts are simply not in dispute.

There is no factual allegation in the record.

There is no suggestion that these employees moved with signs or placards.

The Court has found that picketing is very different from leafleting and that there's an element often of coercion stated or unstated to picketing, but that's not present here.

The employees were stationary.

They distributed pieces of paper with printing on it.

Justice Thurgood Marshall: Were the stationary in the doorway?

Mr. Kenneth Hecht: They were not stationed in the doorway, Your Honor.

They were stationed near the doorway, but the record is also clear that there was no harassment, no violence, no incitement to violence, no obstruction of customers.

There wasn't even --

Justice Thurgood Marshall: There could be harassment by just standing in the doorway?

Mr. Kenneth Hecht: Well, the people who were distributing the leaflets were harassed.

They were called names by the customers who came in, but they did not in turn harass the employees simply by standing.

Justice Thurgood Marshall: Well, what do you say about Mr. Bahrs point in which he wanted two Unions representing the exact same group of employees?

Mr. Kenneth Hecht: It's one of the reasons why we have urged upon the Court to find the conclusion of law rather that the employees were engaged in furthering a grievance.

They were seeking that which the contract promised them.

If they were bargaining, there would be problems.

An employer can't be asked to recognize the purposes of collective bargaining more than one unit -- more than one Union, I'm sorry.

The statute makes that very clear.

But the statute also makes it clear that employees whether individually or in combination and Section 9 (a) talks about groups of employees who may have grievances, have every right under the statute, quite apart from the racial issue to pursue that grievance.

That's what the employees did here.

Justice Thurgood Marshall: Did they strike?

Mr. Kenneth Hecht: No, I don't believe they can strike under this contract in this case.

There is no strike provision.

There is no provision in the contract that prohibits picketing much less distribution of leaflets which the contract couldn't do, contract couldn't waive that.

Justice Thurgood Marshall: Which means they couldn't strike?

Mr. Kenneth Hecht: The contract does say they couldn't strike.

Justice Thurgood Marshall: So that the second Union -- I just don't understand what this group wouldn't be a union in the --

Mr. Kenneth Hecht: The group is not a union.

There is no case that I have found and I have looked very hard --

Justice Thurgood Marshall: They don't want a union?

Mr. Kenneth Hecht: These employees?

Justice Thurgood Marshall: Yes.

Mr. Kenneth Hecht: No.

They don't want a union.

They want to work through their own Union.

They tried that for seven months.

Now what they are trying to do is to have the employer implement the contract provision which their Union gained for them but hasn't really implemented itself.

Justice Thurgood Marshall: You want the employer to give them what their own Union wouldn't give them?

Mr. Kenneth Hecht: I'm sorry, I didn't hear you.

Justice Thurgood Marshall: You want the employer to give them what their own Union wouldn't give them?

Mr. Kenneth Hecht: It's only the employer which could give them this which they asked for which was nondiscrimination in employment, but the Union had a duty to help them to get it from the employer.

Justice Thurgood Marshall: Are they making grievance to this?

Mr. Kenneth Hecht: Well, the Union of course have the duty to make a grievance and it's the specific finding of the Court of Appeals that the Union did not discharge --

Justice Thurgood Marshall: But you want the employer?

Mr. Kenneth Hecht: I'm sorry?

Justice Thurgood Marshall: You want the employer to do the Union's work?

Mr. Kenneth Hecht: No, no, not at all.

We would like the Union to do the Union's work, and that's I think at the heart of --

Justice Thurgood Marshall: You didn't pass out leaflets about the Union, did you?

Mr. Kenneth Hecht: No because there was --

Justice Thurgood Marshall: You passed out leaflets about the employer?

Mr. Kenneth Hecht: Yes.

There was little conflict between the employees and the Union.

The employees didn't try to undermine or replace the Union and the Union recognized that as its appearance here before this Court I think is clearly --

Justice Thurgood Marshall: But my point is that in your view, this is the only way that the minority members of the Union can get what they are entitled to, that's your point, isn't it?

Mr. Kenneth Hecht: No it ought not to be, Your Honor, but it proved to be in this case and the employees waited seven months to make that decision.

Justice Lewis F. Powell: Mr. Hecht, you were drawing a distinction as I understood it between picketing and handing out leaflets.

If you agree that there had been picketing in this case with all of the other facts and circumstances being identical, would your position be different?

Mr. Kenneth Hecht: Section 8 (b) (7) of the statute of the National Labor Relations Act which is the operative section with regard to picketing has three requirements, Your Honor.

One, that there would be picketing, two that the picketing be performed by a Labor Union which Hollins and Hawkins certainly were not.

Third, that what they sought was recognition, it certainly didn't seek recognition.

They were trying to prosecute a grievance.

They did not ever suggest that they were interested in accoutrements of collective bargaining.

They were not looking toward an ongoing relationship with the employer that would include formal terms and conditions of employment.

They were there for one purpose only, to implement the statutory and their contractual right to nondiscrimination in employment.

8 (b) 7 (a) does not apply under any circumstances.

Justice Lewis F. Powell: I understand that is your position, but if you assumed or agreed for example that there were picketing, would that make the case different in your view?

Mr. Kenneth Hecht: No, it would not.

Justice Lewis F. Powell: It would not.

Mr. Kenneth Hecht: In fact, the Board and the Court found that there was picketing and that made no difference to the resolution.

Justice Lewis F. Powell: I understand, yes.

Justice Potter Stewart: You're really arguing a case that isn't here, a case that well might be here if the findings have been different, but the findings of the Trial Examiner accepted by the Board and accepted then by -- unanimously by the three members of the Court of Appeals were that your clients were attempting to bargain?

Mr. Kenneth Hecht: Yes.

Now, I think that those are not findings, so much as conclusions of law which this Court has the authority and often exercises the authority to correct, but I need to make it clear that we don't apologize for the Court of Appeals decision.

We find it that we are altogether able to support that in every way.

What we do think is that it's analytically clear to call what happened prosecution of a grievance and distribution of leaflets, and we think that that more clearly reflects the facts in the record, but we certainly don't mean to suggest to the Court that it's necessary to find either of those things in order to support the result that the District of Columbia Circuit reached.

I wanted to mention just a few facts.

In November 1968, Tom Hollins and Jim Hawkins, two Black stock clerks at the Emporium were fired because as their warning notices and as their termination slip said, they twice had distributed leaflets to the public protesting their employer's racially discriminatory employment practices.

This is the only reason for discharge mentioned either in the preliminary warnings or in the discharge slips themselves.

No one disputes that the employees concerted activity was an effort to vindicate their statutory and contractual rights to nondiscrimination, rights as this Court has said of the highest priority; now that their conduct was peaceful.

There was no violence, no obstruction, they were on a public sidewalk, there was no harassment of customers, no disparagement of goods and services, no appeal to the employees, no work stoppage, no strike.

They leafleted twice on Saturdays on their own time.

No one disputes that the concerted activities were based on a good faith belief.

In fact, it was the Union's official position that discrimination was being practiced at the Emporium.

No one disputes that for seven months, Hollins and Hawkins tried to work through the Union, that they undertook their own efforts only when it became clear that they could not succeed in a realistic remedy for racial discrimination by following the Union's processes and the Union advised them that they were free as individuals to do what they intended to do.

The question before the Court then we would say is whether this lawful concerted activity somehow is deprived of the protection of the National Labor Relations Act because it may have threatened or harmed Union management relations.

The Court of Appeals for the District of Columbia held that the activities were protected.

The discharges were prohibited, that the activities which the Court characterized as attempts to bargain, constituted such limited interference with Section 9 (a) exclusivity principles that because of the employees' purpose in vindicating their important rights, employees remained entitled to the protection of the Act.

Justice Byron R. White: Do you -- I take it you are defending the Court of Appeals?

Mr. Kenneth Hecht: Absolutely.

Justice Byron R. White: Judgment and its opinion?

Mr. Kenneth Hecht: Yes.

Justice Byron R. White: Right down on the line?

Mr. Kenneth Hecht: Yes.

We are --

Justice Byron R. White: Although you have some supplemental arguments --

Mr. Kenneth Hecht: We have some arguments we've been pushing through a long time --

Justice Byron R. White: I take it then you agree that there would still be open, the Jefferson Standard question before the Board?

Mr. Kenneth Hecht: Yes.

Justice Byron R. White: And that if it were found which it wasn't found by the Board although the Trial Examiner apparently discussed it, if it were found that this is the kind of picketing and would that justify discharge under the Jefferson Standard, you would have no objection?

Mr. Kenneth Hecht: I have great objection.

I have very weak argument --

Justice Byron R. White: You're not supporting the Court of Appeals' opinion there?

Mr. Kenneth Hecht: I have --

Justice Byron R. White: The Court's opinion left that open?

Mr. Kenneth Hecht: That's right and I think the appropriate thing for the Court to do and I believe on remand that the Board has before it the question of the Jefferson Standard issue --

Justice Byron R. White: And the Court of Appeals as I read it that if the finding was made of the discharges for that reason, this case is over?

Mr. Kenneth Hecht: I don't think the Court of Appeals reached that, but I think it's implicit in what the Courts --

Justice Byron R. White: So you support that?

Mr. Kenneth Hecht: Yes I do.

Justice Byron R. White: And what do you understand then the claim is as to why the employees were fired?

Mr. Kenneth Hecht: I believe the employees were fired here because they on two Saturdays distributed leaflets which --

Justice Byron R. White: What was the -- normally, you have to be fired for some cause?

Mr. Kenneth Hecht: Of course.

Justice Byron R. White: What cause was asserted, that you just handed out leaflets in the front of my store?

Mr. Kenneth Hecht: Yes, that's all that is stated on the face of the warning notice or the discharge letter, and it was in response to those that the Union immediately filed grievance.

Justice Byron R. White: Without any assertion or finding that it was a sign of disloyalty or something like that?

Mr. Kenneth Hecht: Well, there is suggestion that there is disloyalty, absolutely.

Chief Justice Warren E. Burger: Didn't that put it directly on the Jefferson Standard kind of conduct?"

Mr. Kenneth Hecht: Yes.

Justice Byron R. White: Well, but the Board --

Mr. Kenneth Hecht: They didn't mention Jefferson Standard on the slip.

Justice Byron R. White: But the Board sustained the discharge without making any Jefferson findings -- Jefferson Standard findings?

Mr. Kenneth Hecht: I think they believe they didn't have to and I think the Trial Examiner found it a difficult question.

Justice Byron R. White: What was the Board's justification for the findings?

Mr. Kenneth Hecht: The Board's justification was that the employees again were intent upon bargaining, separate bargaining, that this so undermined the Union, disrupted the Union Management relationship that by virtue of the principles inherent in Section 9 (a) of the Act, they simply were engaging in a prohibited activity.

Justice Byron R. White: My real reason in asking was you would agree then that Section 7 of the Labor Law does not protect this activity if it were Jefferson Standard type activity?

Mr. Kenneth Hecht: I believe Jefferson Standard so holds.

Justice Byron R. White: And that it wouldn't, even though there was a -- it's the objection as to an alleged racial discrimination?

Mr. Kenneth Hecht: I don't think that the racial element in the case needs the Jefferson Standard.

Justice Byron R. White: And even in the light of Title VII?

Mr. Kenneth Hecht: Yes.

We have discussed already and I see no reason to go over why we think the employees were engaged in protest activity and why would we think that the employees were engaged in the presentation of a grievance, that they were not bargaining.

But even if it is bargaining, as the lower courts concluded and I've mentioned before, we fully support the Court's opinion, Hawkins and Hollins are still protected because here on the facts, Hawkins and Hollins first went to the Union.

They tried to work through the Union and with the Union for seven months.

I think Gardner-Denver case that my opposing attorney has suggested to the Court -- brought to the Court indicates that these kinds of informal resolution or racial problems is always a preferred method where it can work.

If you can go the Union, the Union can bring it to the employer.

If you can affect the remedy, good.

The employees abandoned the Union only when the futility of their staying with the Union became clear, and when the Union had told them that they were free to undertake the individual action that they intended to take.

Chief Justice Warren E. Burger: You have already answered I think to Mr. Justice Powell saying your position would be the same if they have in fact picketed instead of handing out leaflets.

So that what you're saying, I take it is that when the members of the Union, any members of the Union are not satisfied with the Union's result for them and for their claims, then they may engage in typical collective bargaining type of protest that is Union picketing, the same kind of technique that the Union uses to enforce?

Mr. Kenneth Hecht: No.

I think it's clear that the employees normally cannot do that in a labor management situation.

First of all because of the special characteristics of picketing, secondly because during the period of a contract or during --

Chief Justice Warren E. Burger: -- special characteristics of picketing, but you say this case would be no different if they have picketed instead of handing out leaflets, didn't you?

Mr. Kenneth Hecht: The major point of difference I think would be that under a regular kind of problem that the employees have Section 9 (a) has made it clear that their recourse is to try to work first through the Union, their exclusive bargaining agent, then to go the employer with a grievance if that proved necessary.

Now the employer has no duty to meet, there was one question that came up early -- earlier.

It's clear under Section 9 (a) that the employer has no duty to meet with the employees, but he can if he wishes and if he cares to make an adjustment that is consistent with a collective bargaining agreement, then he is got to call the Union in to be present at that adjustment.

It's another reason if I can divert for just this point, it's another reason why we think it's better analytically to see this as a grievance because then there is a very practical method of working out minority problems.

Minority members, if they find that the Union has not been as responsive as is necessary, may go to the employer.

If the employer wants to deal with them, then all he is got to do is follow the procedure under Section 9 (a) and call in the Union to be present or hopefully before that and to help to negotiate the adjustment that the contract requires and that the law requires.

I'm not certain that I have answered your question.

Chief Justice Warren E. Burger: Well you enlightened me somewhat on your view.

Mr. Kenneth Hecht: But perhaps not on the question you had in mind.

Justice William H. Rehnquist: Mr. Hecht?

Mr. Kenneth Hecht: Yes sir.

Justice William H. Rehnquist: What is your position as to what the record shows about exactly why these employees did abandon the Union?

Mr. Kenneth Hecht: I think the record is clear from the testimony of Hollins and Hawkins themselves that they abandoned the Union principally because after waiting seven months, the Union insisted upon handling the problem as if there were a serious seriatim of individual grievances which should be adjusted individually.

And Hollins and Hawkins were scared to death, that what would happened was that there would be some token individual adjustments and in fact, that's exactly what happened.

There were at least one, perhaps two adjustments of promotion on behalf of minority employees and that was 1968 and not a single thing has happened since.

Justice William H. Rehnquist: Would the grievance procedures in the contract have permitted the type of group resolution that Hollins and Hawkins wanted?

Mr. Kenneth Hecht: There is nothing in the contract that would tend to prevent that kind of group presentation and the law specifically permits it.

Section 9 (a) speaks of grievances presented by individuals or groups of individuals.

So, I don't think the contract could attempt to prohibit that even if we wanted to, it would be unlawful.

Justice William H. Rehnquist: That's presented directly to the employer by 9 (a)?

Mr. Kenneth Hecht: I'm sorry?

Justice William H. Rehnquist: You say that the law permits presentation by employees or groups of employees -

Mr. Kenneth Hecht: That's right.

Justice William H. Rehnquist: -- I was curious as to whether under the grievance procedure in the collective bargaining contract that the type of group resolution where would be permissible that Hollins and Hawkins wanted?

Mr. Kenneth Hecht: Mr. Justice Rehnquist I, believe the contract is silent on that.

I'm unaware of anything in the contract that states one way or the other.

Justice Potter Stewart: How about the law assuming absence of anything in the contract?

When you begin doing that, isn't that -- then, you are no longer processing a grievance, your trying to change collective bargaining agreement, aren't you?

Mr. Kenneth Hecht: No.

The collective bargaining agreement --

Justice Potter Stewart: Which provides for a term that it was -- it hasn't expired here --

Mr. Kenneth Hecht: Provides for a term that there should be discrimination in employment and that's what Hollins and Hawkins wanted.

They didn't want more than the Whites, they didn't want more than any other racial or ethnic minority or sexual minority.

All they wanted was parity.

They wanted what the contract provided, that's why it was a grievance.

They wanted to implement a term of the contract as well as to implement a statutory right.

Justice Potter Stewart: What sort of a group did they -- a group processing of this so called grievance to day one?

Everybody who was non-White, Indians and Mexicans, or Mexican Americans or Mexicans?

Mr. Kenneth Hecht: Yes.

The question went not so much to processing as it did to remedy.

That Hollins and Hawkins wanted a remedy that would establish equal employment opportunity for all minorities, racial, ethnic and sexual.

Justice Potter Stewart: They were talking about only the employees presently employed -- then employed, weren't they?

Mr. Kenneth Hecht: Yes.

Justice Potter Stewart: They were not talking about hiring?

Mr. Kenneth Hecht: Oh!

No.

No, it was nondiscrimination in employment of those who were present at the Emporium.

Most of the record testimony which has to do with what the employees did, how they ascertained as a good faith belief that there was discrimination really goes to the placement of individuals throughout the store and to their promotion.

I think it's silent as to hiring, although there is statistical information in the record that the hiring was not so good either.

If there are no more questions, thank you very much.

Justice Harry A. Blackmun: I'll ask a minor one.

I'm frank to say I'm disturbed by the standard that the majority of the Court of Appeals established when it speaks of the first resort to the Union and then failure to remedy the discrimination and I quote now “to the fullest extent possible by the most expedient and efficacious means.”

What is that mean?

How can it be implemented?

Mr. Kenneth Hecht: That maybe frank to say that at first I was troubled by that standard too, and I'd like to offer following observations on it if I can.

I think the standard attempts to go a little bit farther than the Court has gone in its duty of fair representation of cases.

Duty of fair representation as we've indicated in our brief always requires a showing of malice.

The Union here was not malicious.

They simply weren't effective.

I think as the court below is suggesting that that kind of inactivity, or ineffectiveness or disinterest maybe enough to permit employees to try to go out without the Union.

The Board administers phrases and standards of that amorphousness all the time, Your Honor.

They administer standards such as duty to bargain, duty to bargain in good faith.

These are very difficult duty of fair representation, these are very difficult as words alone to administer, but that's what the administrative agency does.

As this Court has said in a case involving jurisdictional disputes, soon after that section of the statute became implemented, the difficulty of administering a standard is not a reason for the Board, not to accept the jurisdiction to administer the standard.

It maybe difficult, but doesn't give them an excuse to avoid it.

Finally and may I point out that recently in a case that we cited several times in our brief, the case of the Labor Boards called Bekins, Bekins Moving.

The Board showed that it was willing to get into the very difficult area of race discrimination.

When the question came up, should a Union be certified after it had won an election, but the employer alleged that the Union was practicing discrimination.

That's not easy either, and the Board said that.

They said it's a difficult test that we have set for ourselves, but we're going to take it on a case-by-case basis and we're going to do it because we think the Constitution requires that.

I don't think that the test which the Court of Appeals is suggested here is anymore difficult than those which the Board has voluntarily and over a period of time administered.

Chief Justice Warren E. Burger: Thank you Mr. Hecht.

Mr. Kenneth Hecht: Thank you very much.

Chief Justice Warren E. Burger: Mr. Wallace, do you have any further, you have only one minute.

Rebuttal of Lawrence G. Wallace

Mr. Lawrence G. Wallace: Well, with respect to the standard, I'll just say that the word remedying and what constitutes the proper remedy for agreed upon discrimination is itself subject to great dispute, let alone by the most efficacious and effective means.

And we regard this as not only putting the Board into a very difficult role of trying to second guess the discretion exercised by the bargaining representative, but also putting the bargaining representative into a role of deciding rather than what it thinks is the best way to proceed, deciding what it thinks the Board will think is the way that it should proceed to remedy something which is very troublesome in the Standard adopted, thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.