Bell & Howell Co. v. N.L.R.B., AFL-CI

Decision Date18 June 1979
Docket NumberNo. 75-2002,AFL-CI,I,75-2002
Citation194 U.S.App.D.C. 217,598 F.2d 136
Parties100 L.R.R.M. (BNA) 2192, 18 Fair Empl.Prac.Cas. 1204, 18 Empl. Prac. Dec. P 8859, 194 U.S.App.D.C. 217, 85 Lab.Cas. P 10,991 BELL & HOWELL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Local 399, International Union of Operating Engineers,ntervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

John P. Jacoby, Chicago, Ill., for petitioner.

Richard B. Bader, Atty., N. L. R. B., Washington, D. C., with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Marion Griffin, Atty., N. L. R. B., Washington, D. C., were on the brief, for respondent.

Sheldon M. Charone, Chicago, Ill, and Michael Fanning, Washington, D. C., were on the brief, for intervenor.

Also Michael J. Bartlett, Washington, D. C., entered an appearance for petitioners.

Before BAZELON, McGOWAN and ROBB, Circuit Judges.

Opinion for the Court filed by BAZELON, Circuit Judge.

BAZELON, Circuit Judge:

Petitioner Bell & Howell Co. (Bell & Howell) challenges an order of the National Labor Relations Board (NLRB) requiring Bell & Howell to bargain with Local 399, Operating Engineers (Local 399) as collective bargaining representative for Bell & Howell's stationary engineers at its Lincolnwood, Illinois facility.

Bell & Howell contends that it is not obligated to bargain with Local 399 because Local 399 allegedly discriminates against women in its membership policy and benefit plans. Bell & Howell also challenges certain evidentiary rulings made by the NLRB in the pre-election inquiry into the appropriateness of the bargaining unit. We affirm the Board's decision that Bell & Howell violated §§ 8(a)(5) and (1) of the Act. 1

I. BACKGROUND

On April 25, 1973, Local 399 petitioned the NLRB for a representation election for Bell & Howell's stationary engineers at Lincolnwood. The NLRB held hearings before a hearing officer to determine the appropriateness of the unit. During the course of that proceeding Bell & Howell sought production of Local 399's labor contracts and records of jurisdictional disputes involving Local 399. 2 These documents were necessary, in Bell & Howell's view, to shed light on the appropriateness of the unit. 3 At the request of Local 399, the Hearing Officer revoked Bell & Howell's subpoena on the grounds that the request was burdensome and the material irrelevant. Bell & Howell appealed unsuccessfully to the Regional Director, and the hearing then concluded.

After the hearing, Bell & Howell again appealed the evidentiary ruling to the Regional Director, who agreed to a limited reopening of the hearing to consider additional evidence on the appropriateness of the unit. 4 Bell & Howell then reissued the subpoena to Local 399. After much procedural wrangling, Local 399 finally produced ten sample contracts and offered to permit Bell & Howell to examine the remaining documents at Local 399's offices. Although Bell & Howell complains that this constituted "blatant refusal to comply with the subpoena," Br. for Bell & Howell at 8, the Regional Director held that by producing ten contracts and making the remainder available to Bell & Howell, the union had "sufficiently complied" with the subpoena. Joint Appendix (J.A.) 74. The Regional Director found that the stationary engineers were an appropriate unit. On February 11, 1974, the NLRB denied Bell & Howell's request for review of the Regional Director's decision. The election, held on February 15, 1974, resulted in seven votes for Local 399, one against.

On February 20, 1974, Bell & Howell moved to disqualify Local 399 from certification because the union allegedly discriminates against women. While the motion was pending, the NLRB announced its policy toward allegations of union discrimination in representation proceedings in Bekins Moving & Storage Co., 211 N.L.R.B. 138 (1974). In Bekins, a plurality of the Board (Chairman Miller and Member Jenkins) suggested that the Board could not constitutionally certify a union engaged in invidious discrimination. Id. at 139. The plurality therefore interpreted § 9(c)(1) of the Labor Management Relations Act (LMRA), 5 to require an inquiry into allegations of discrimination before certification but after the union involved actually won an election. The plurality did not enunciate what proof of discrimination would be necessary to disqualify a union, but suggested that not every violation of Title VII would be sufficient grounds for denying certification. The Board left the standards to be worked out in future adjudication.

Member Kennedy concurred in part in the plurality opinion. He would deny certification of a union only when the union discriminated in its Membership policy on the basis of Race, alienage or National origin. Id. at 145. He would not decline to certify when the complained-of practice was the union's failure to honor its duty of fair representation. Id. Members Fanning and Pennello dissented, arguing that the Constitution did not require the Board to consider allegations of discrimination prior to certification, and that the Act, § 9(c)(1), affirmatively forbade consideration of the issue.

Shortly after the decision in Bekins, the Board issued its first decision in this case. In Bell & Howell Co., 213 N.L.R.B. 407 (1974), the Board refused to entertain Bell & Howell's allegations of discrimination. Members Fanning and Pennello (the dissenters in Bekins ) were joined by member Kennedy, who declined to extend the Bekins principle to allegations of discrimination against women. Chairman Miller and Member Jenkins dissented, concluding that Bell & Howell had made out a prima facie case of discrimination under Bekins and that the Board should therefore investigate the allegations.

In order to obtain judicial review of the NLRB's decision 6 Bell & Howell refused to bargain with Local 399. Local 399 brought unfair labor practice charges against Bell & Howell, and the Board, relying on its decision in the certification proceeding, ultimately granted summary judgment against the company, and found that the refusal to bargain violated §§ 8(a)(5) and (1) of the Act. 7 Bell & Howell Co., 220 N.L.R.B. 881 (1975).

On December 22, 1975, the NLRB decided Sua sponte to reconsider its decision in this and three similar cases. On June 24, 1977, the NLRB issued its supplemental decision, affirming its earlier finding that Bell & Howell had violated §§ 8(a)(5) and (1) and ordering Bell & Howell to bargain with Local 399. Bell & Howell Co., 230 N.L.R.B. 420 (1977). In the supplemental decision the Board followed the rationale of Handy Andy, 228 N.L.R.B. 447 (1977), which overruled Bekins. In Handy Andy the Board announced it would no longer consider evidence of invidious discrimination by a union prior to certifying the union as a collective bargaining representative. The Board held that it is not constitutionally required to consider such evidence, and further, it is "Not authorized to withhold certification of a labor organization duly selected by a majority of the unit employees. Id. at 448 (emphasis added).

II. THE BOARD'S REFUSAL TO ENTERTAIN EVIDENCE OF DISCRIMINATION BY LOCAL 399
A. Employer's Standing to Challenge Union Discrimination

Initially, we must determine whether Bell & Howell has standing to challenge the Board's certification of Local 399 where the challenge is based on Local 399's alleged discrimination against women. 8 The Board, relying on Virginian Ry. Co. v. System Federation 40, 9 contends that an employer lacks standing to assert the constitutional rights of its employees as a defense to the statutory obligation to bargain with the employees' chosen representative.

The economic consequences of a bargaining order to an employer appear sufficient to establish "injury in fact," the element of standing mandated by the case or controversy requirement of Article III. 10 An employer who has been found guilty of an unfair labor practice and has been ordered to bargain is also a "person aggrieved" within the meaning of § 10(f) of the Act. 11 Therefore, the employer is also well within the ambit of the statutory authorization to seek review. 12

Normally, however, one who properly invokes the jurisdiction of a federal court "has standing to seek redress for injuries done to him, but may not seek redress for injuries to others." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166, 92 S.Ct. 1965, 1968, 32 L.Ed.2d 627 (1972). 13 In challenging Local 399's certification, Bell & Howell did not allege that Local 399's discriminatory policies have or will cause any harm to Bell & Howell (E. g., by preventing Bell & Howell from hiring female stationary engineers or causing Bell & Howell to violate statutes prohibiting discrimination against women.) 14

The barrier against asserting the rights of third parties does not appear to be rooted in Article III itself, but rather is a prudential doctrine designed to limit unnecessary decisions of constitutional questions. 15 The rule against allowing a party to assert the constitutional rights of third persons has been relaxed in certain situations, particularly where the third party's interest might otherwise go unprotected. 16

Whether in this case the interest would otherwise go unprotected depends on precisely how the "interest" at stake is defined. If the interest is in eliminating the union's discriminatory practices, there are alternative means of achieving this goal under both the LMRA (once the union has been certified) and Title VII, 17 and under both provisions the action can be brought by the victim of discrimination. If, on the other hand, the interest is in preventing certification of a discriminatory union, there may be no adequate alternative to allowing the employer to raise the issue. The right of a dissenting unit member, or...

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