Local Union No. 12, United Rubber, C., L. & P. Wkrs. v. NLRB

• Decision Date: 09 November 1966
• Docket Number: No. 22239.,22239.
• Parties: LOCAL UNION NO. 12, UNITED RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

368 F.2d 12 (1966)

LOCAL UNION NO. 12, UNITED RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 22239.

United States Court of Appeals Fifth Circuit.

November 9, 1966.

COPYRIGHT MATERIAL OMITTED

Clarence Rhea, Gadsden, Ala., Robert L. Carter, New York City, for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., for respondent.

Before RIVES and THORNBERRY, Circuit Judges, and GARZA, District Judge.

THORNBERRY, Circuit Judge.

Petitioner, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, Local Union No. 12 (hereinafter referred to as Local 12), initiated these proceedings to review a determination by the National Labor Relations Board that Local 12 had engaged in unfair labor practices within the purview of sections 8(b) (1) (A), 8(b) (2), and 8(b) (3) of the Labor Management Relations Act, 61 Stat. 136 (1947), as amended, 29 U.S.C. § 141 et seq., by refusing to process certain grievances of eight Negro employees in its bargaining unit at Goodyear Tire & Rubber Company of East Gadsden, Alabama. The facts underlying the controversy are virtually undisputed.

Local 12 has been the exclusive collectiveÅ bargaining representative of Goodyear's East Gadsden plant employees since 1943. Until March 1962, three separate seniority rolls — white male, Negro male, and female — were maintained, although the bargaining contract between Goodyear and Local 12 appeared to provide for plantwide seniority without regard to race or sex. As a matter of custom and interpretation during this period, Negro employees with greater seniority had no rights over white employees with less seniority, and vice versa, with respect to promotions, transfers, layoffs, and recalls. Also as a matter of custom, racially separate plant facilities such as lunchrooms, restrooms and showers were maintained, although no provision in the bargaining contract dealt with such matters.

The eight complainants were laid off in August or September 1960, and were recalled approximately one year later. In October 1961, Buckner, one of the eight complainants, having been notified that he was to be again laid off, inquired why a white employee with less seniority continued to remain employed. He was informed by the assistant manager o Goodyear's labor department that the posted job was a "white job." Thereupon, Buckner and the other complainants, who were also in layoff status, executed affidavits that during their period of layoff subsequent to August or September 1960, new workers had been hired in violation of plant seniority rules. These affidavits were forwarded to the President of Local 12, requesting that Local 12 investigate the alleged grievances and take remedial action. The complainants appeared before the grievance committee on December 8, 1961, and presented a more complete "Statement of Complaint" which charged (1) that the original layoff and recall had not been in accordance with contract-stated seniority and that complainants demanded reinstatement with back wages, (2) that upon recall complainants wanted all transfer privileges as set forth in the contract, and (3) that complainants demanded the right to all plant privileges without color barriers. The committee concluded that "no contract violation exists, therefore, the Union has no ground on which to base a complaint against the company." Subsequent appeals to the union executive board and the full union membership were likewise denied. In March 1962, complainants appealed the action of Local 12 to George Burdon, the union's International President. In light of the information requested by Burdon, and provided by the complainants and Local 12, he concluded that the decision refusing to process the grievances should be reversed.

While Local 12 continued to refrain from filing a formal grievance, the record reflects that in the latter part of March 1962 union representatives met with company officials and a representative of the President's Committee on Equal Employment Opportunity¹ to discuss the racially segregated employment practices. These discussions apparently culminated in a verbal agreement between Local 12 and Goodyear to discontinue any application of the bargaining contract which confined Negro and white employees to particular jobs and restricted opportunities for upgrading, recall, and transfer to jobs theretofore separated on racial lines. Complainants were reinstated and there is no evidence that any racially discriminatory practices with regard to job opportunities, transfer, promotion, layoff, or participation in Goodyear's training program existed after March 1962. It is further clear from the record, however, that Local 12 continued to refuse to process the grievances concerning back wages for the period of layoff occasioned by application of the seniority system in effect prior to March 1962, as well as those concerning the continued segregated nature of plant facilities.² Accordingly, on October 22, 1962, the initial unfair labor practice charges were filed against Local 12.

In reversing the trial examiner's determination that no unfair labor Åpractice had been established, the Board concluded that petitioner, by refusing to process the grievances concerning back wages and segregated plant facilities, had thereby (1) restrained or coerced complainants in their section 7 right to be represented without invidious discrimination, (2) caused or attempted to cause Goodyear to discriminate against complainants, and (3) refused to bargain in complainants' behalf, thus violating sections 8(b) (1) (A), 8(b) (2), and 8(b) (3) of the act.³ Petitioner was accordingly ordered to process the grievances through arbitration and to propose to Goodyear specific contractual provisions prohibiting racial discrimination in terms and conditions of employment pursuant to the oral agreement of March 1962. From that order Local 12 petitions this Court for review.

The facts of this controversy once again present the critical challenge of striking a meaningful balance, consistent with existing labor policy, between individual employee rights and the continued effectiveness of the collective bargaining process. Essential to an aduate analysis of any issue involving the scope of union responsibility to those it represents is the recognition that administration of internal union affairs constitutes a significant element in the collective bargaining process. Accordingly, the vital issue in this area resolves itself into that of determining at what point the exclusive bargaining agent's duty to represent fairly the interests of each individual employee must bow to the equally comprehensive obligation of negotiating and administering the bargaining contract in accordance with the act's primary policy of fostering union-employer relations. While the Supreme Court has declared that an exclusive bargaining agent "is responsible to, and owes complete loyalty to, the interests of all whom it represents," Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1058, it has at the same time recognized the inherent burden this mandate serves to impose upon a union obliged to exercise good faith in adjusting the numerous competing interests of its individual members:

Inevitably differences will arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.

Ibid. Nevertheless, when the individual employee, pursuant to federal law aimed at preserving industrial harmony, is required to surrender completely his right of self-representation in deference to an "exclusive" bargaining agent designated by a majority of his coworkers, both logic and equity dictate that such agent be impressed with a reciprocal duty to "represent all its members, the majority as well as the minority, and * * * to act for and not against those whom it represents." Steele v. Louisville & N.R. R., 1944, 323 U.S. 192, 202, 65 S.Ct. 226, 232, 89 L.Ed. 173, 183; see Hughes Tool Co. v. NLRB, 5th Cir. 1945, 147 F.2d 69, 74, 158 A.L.R. 1165. Indeed, the Supreme Court has indicated that any statute purporting to bestow upon a union the exclusive right to represent all employees would be unconstitutional if it failed to impose upon the union this reciprocal duty of fair representation. Steele v. Louisville & N.R.R., supra, 323 U.S. at 198-199, 65 S.Ct. at 230, 89 L.Ed. at 180-181.

Although the concept of "fair representation" is generally thought of as having arisen initially in Steele v. Louisville & N.R.R., which involved a controversy under the Railway Labor Act, 44 Stat. 577 (1926), 45 U.S.C. § 151 et seq.Å, the Supreme Court on that same day declared an indentical duty to be implicit in section 9(a) of the National Labor Relations Act.⁴ Wallace Corp. v. NLRB, 1944, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216. Subsequent decisions, moreover, have further confirmed the principle that this duty of fair representation constitutes a fundamental limitation upon union activity under the act. E. g., Humphrey v. Moore, 1965, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370; Syres v. Oil Workers Int'l. Union, 1955, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 285, reversing 5th Cir. 1955, 223 F.2d 739; Ford Motor Co. v. Huffman, supra. Therefore, we are not here called upon to establish such duty but rather to face the issue of what conduct represents a breach of that duty, together with its appropriate remedy. More specifically, we must...