420 U.S. 50 (1975), 73-696, Emporium Capwell Co. v. Western Addition Community Organization

Docket Nº:No. 73-696
Citation:420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12
Party Name:Emporium Capwell Co. v. Western Addition Community Organization
Case Date:February 18, 1975
Court:United States Supreme Court

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420 U.S. 50 (1975)

95 S.Ct. 977, 43 L.Ed.2d 12

Emporium Capwell Co.


Western Addition Community Organization

No. 73-696

United States Supreme Court

Feb. 18, 1975

Argued October 22, 1974




A union, after investigating complaints that the company with which it had a collective bargaining agreement was racially discriminating against employees, invoked the contract grievance procedure by demanding that the joint union-management Adjustment Board be convened "to hear the entire case." Certain employees who felt that procedure inadequate refused to participate, and, against the union's advice, picketed the company's store. The company, after warning the employees, fired them on their resumption of picketing, whereupon a local civil rights association to which the fired employees belonged (hereinafter respondent) filed charges against the company with the National Labor Relations Board (NLRB) under § 8(a)(1) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice for an employer to interfere with an employee's right under § 7 to engage in concerted action "for the purpose of collective bargaining or other mutual aid or protection." The NLRB found that the employees were discharged for attempting to bargain with the company over the terms and conditions of employment as they affected racial minorities, and held that they could not circumvent their elected representative's efforts to engage in such bargaining. On respondent's petition for review, the Court of Appeals reversed and remanded, concluding that concerted activity against racial discrimination enjoys a "unique status" under the NLRA and Title VII of the Civil Rights Act of 1964; that the NLRB

should inquire, in cases such as this, whether the union was actually remedying the discrimination to the fullest extent possible, by the most expedient and efficacious means,

and that, "[w]here the union's efforts fall short of this high standard, the minority group's concerted activities cannot lose [their] section 7 protection."

Held: Though national labor policy accords the highest priority to nondiscriminatory employment

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practices, the NLRA does not protect concerted activity by minority employees to bargain with their employer over issues of employment discrimination, thus bypassing their exclusive bargaining representative. Pp. 60-70.

(a) The NLRA in § 9(a) recognizes the principle of exclusive representation, which is tempered by safeguards for the protection of minority interests, and, in establishing this regime of majority rule, Congress sought to secure to all members of the collective bargaining unit the benefits of their collective strength in full awareness that the superior strength of some individuals or groups might be subordinated to the majority interest. Pp. 61-65.

(b) Separate bargaining is not essential to eliminate discriminatory employment practices, and may well have the opposite effect. Here, the grievance procedure of the collective bargaining agreement was directed precisely at determining whether such practices had occurred. Pp. 65-70.

(c) If the discharges here involved violate Title VII, its remedial provisions are available to the discharged employees, but it does not follow that the discharges also violated § 8(a)(1) of the NLRA. Pp. 70-72.

158 U.S. App. D.C. 13, 485 F.2d 917, reversed.

MARSHALL, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 73.

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MARSHALL, J., lead opinion

[95 S.Ct. 980] Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR. CHIEF JUSTICE BURGER.

This litigation presents the question whether, in light of the national policy against racial discrimination in employment, the National Labor Relations Act protects concerted activity by a group of minority employees to bargain with their employer over issues of employment discrimination. The National Labor Relations Board held that the employees could not circumvent their elected representative to engage in such bargaining. The Court of Appeals for the District of Columbia Circuit reversed and remanded, holding that, in certain circumstances, the activity would be protected. 158 U.S.App.D.C. 138, 485 F.2d 917. Because of the importance of the issue to the administration of the Act, we granted certiorari. 415 U.S. 913. We now reverse.


The Emporium Capwell Co. (Company) operates a department store in San Francisco. At all times relevant to this litigation, it was a party to the collective bargaining agreement negotiated by the San Francisco Retailer's Council, of which it was a member, and the

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Department Store Employees Union (Union) which represented all stock and marking 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 antidiscrimination clause.1

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 take 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

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potentially explosive if corrective action were not taken. It offered 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 with Union 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 antipoverty agency. The secretary-treasurer of the Union announced that the Union had concluded that the Company was discriminating, and that it [95 S.Ct. 981] 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 joint 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 antipoverty agency representatives offered the same advice. Nonetheless, when the Adjustment Board meeting convened on October 16, James Joseph Hollins, Tom Hawkins, and two other employees whose

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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.

Hollins attempted to discuss the question of racial discrimination with the Company president shortly after the incidents of October 16. The president refused to be drawn into such a discussion, but suggested to Hollins that he see the personnel director about the matter. Hollins, who had spoken to the personnel director before, made no effort to do so again. Rather, he and Hawkins and several other dissident employees held a press conference on October 22 at which they denounced the store's employment policy as racist, reiterated their desire to deal directly with "the top management" of the Company over minority employment conditions, and announced their intention to picket and institute a boycott of the store. 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.2 Johnson

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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.3

[95 S.Ct. 982] On November 7, Hollins and Hawkins were given written warnings...

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