NLRB v. Tanner Motor Livery, Ltd.

• Decision Date: 19 November 1969
• Docket Number: No. 22676.,22676.
• Citation: 419 F.2d 216
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TANNER MOTOR LIVERY, LTD., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

419 F.2d 216 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TANNER MOTOR LIVERY, LTD., Respondent.

No. 22676.

United States Court of Appeals Ninth Circuit.

November 19, 1969.

Abigail C. Baskir (argued), NLRB, Los Angeles, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Michael N. Sohn, John E. Nevins, NLRB, Washington, D. C., for appellant.

John O. Hargrove (argued), of Berol, Loughran & Geernaert, San Francisco, Cal., Thomas Harris, J. Albert Woll, Lambert Miller, Washington, D. C., for appellee.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

DUNIWAY, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order entered after we had remanded the case to the Board for further proceedings. Initially, the Board found that Tanner had unlawfully discharged two employees for engaging in concerted activities which were protected by the National Labor Relations Act, as amended. See 148 N.L.R.B. 1402 (1964). In NLRB v. Tanner Motor Livery, Ltd., 9 Cir., 1965, 349 F.2d 1, we agreed with the Board that an attempt by two employees, acting in concert, to persuade their employer to hire Negroes was within the protection of section 7 of the Act, 29 U.S.C. § 157. We remanded to the Board for it to consider whether an employer could discharge employees who picket in support of their aims when there is an established collective bargaining representative having a contract with the employer, and the employees do not act or seek to act through that representative.

The Board on remand held that such consideration was neither essential nor necessary. It indicated that

"The employees were not acting in derogation of their established bargaining agent by seeking to eliminate what they deemed to be a morally unconscionable, if not unlawful, condition of employment. In these circumstances, we are unable to find that the Union\'s status as the employee\'s exclusive bargaining agent was infringed, imperiled, or otherwise undermined. * * *

"In addition, * * * we must assume that these employees were acting in accord with, and in furtherance of, the lawful position of their bargaining agent. For the Board to find therefore, that the employee\'s otherwise protected concerted activities herein were rendered unprotected by virtue of an existing collective-bargaining agreement between Union and the Respondent would be offensive to public policy." Footnotes omitted.

A dissenter would have dismissed the complaint.

The Board's opinion obfuscates the issue somewhat, but the very troublesome question presented by this case remains: to what extent does section 9(a) (29 U.S.C. § 159(a)) limit or remove the protection afforded employees by section 7? To the answering of this question the Board has contributed nothing but an ipse dixit. We therefore deem it our duty further to explore the question.

Section 7 guarantees that employees shall have the right to engage in concerted activities, but section 9(a) expresses a strong Congressional policy for an exclusive bargaining representative selected by the majority of the employees in a bargaining unit. The case is complicated by the racial character of the concerted employee activities. The employees, Abramson and Dorbin, were picketing in support of a highly desirable objective. Nonetheless, this fact should not be permitted, per se, to obscure the question. See Getman, The Protection of Economic Pressure by Section 7 of the National Labor Relations Act, 115 U.Pa. L.Rev. 1195, 1245-46, nn. 199, 200 (1967) (commenting on our prior decision in this case).

I

As we indicated in our first opinion, the desire for nondiscriminatory hiring does relate to terms and conditions of employment. Accordingly, we held that the concerted activities of Abramson and Dorbin in support of this desire would be protected by section 7 if no bargaining representative had been present. NLRB v. Tanner Motor Livery, Ltd., supra, 349 F.2d at 4. Our first opinion also noted that section 9(a)'s provision for an exclusive bargaining representative reserves the right of individual employees or groups of employees to deal with the employer regarding "grievances." But we suggested that the desire "for non-discriminatory hiring, while a proper subject for collective bargaining, may not be a proper basis for a grievance." 349 F.2d at 5. The desire relates to a condition of employment affecting the entire bargaining unit; it is not personal to Abramson or Dorbin. Cf. Brown v. Sterling Aluminum Products Corp., 8 Cir., 1966, 365 F.2d 651, 656-657. Because it is a proper subject of bargaining between the union and the employer, the union by section 9 (a) has been vested with the task of vindicating the employees' interest. Thus, the chief question presented is, to what extent does this vesting cut off minority employee rights under section 7? Further, what relevance does the existence of a collective bargaining contract have — and is it important that the contract has anti-discrimination provisions? Finally, would employees have to go through the union even in the absence of a specific anti-discrimination clause in the contract?

The leading case in this general area is NLRB v. Draper Corp., 4 Cir., 1944, 145 F.2d 199, 156 A.L.R. 989. There a union had been selected as the employees' bargaining agent and had made a collective bargaining contract with the employer. The contract expired, and a minority group of employees struck to protest delay in renegotiating the contract. The union did not sanction the strike, but neither was there any evidence of a split between the union and the "wildcat" strikers. The company fired the strikers; the Board held that the activity was protected under section 7 and that the discharges were discriminatory. The Fourth Circuit reversed, holding that a minority had "no right to take independent action to interfere with the course of bargaining which is being carried on by the duly authorized bargaining agent chosen by the majority." 145 F.2d at 203.

Draper looked for support to a concept of orderly collective bargaining in which the employer dealt with one party, the designated union. The employer was to look to the union for all demands and concerted economic activity supporting those demands. In Draper the employees had not formulated separate demands but had engaged in activity which amounted to independent unsolicited support for the union's position.

We have cited and followed Draper in situations where a minority struck without authorization from a union which had been designated as the bargaining representative. In NLRB v. Warner Bros. Pictures, Inc., 9 Cir., 1951, 191 F.2d 217, the activity of the discharged strikers actually was in opposition to the position of their union. But in NLRB v. Sunset Minerals, Inc., 9 Cir., 1954, 211 F.2d 224, a minority struck to protest employer practices where the union had been approached and had taken some action. The minority-employee activity had not been authorized by the union but generally supported the union's position. We said that the case involved similar principles, but upheld the discharge of the strikers, on another ground.

We have reached a contrary result where the employees were not represented by a union in Electromec Design & Development Co. v. NLRB, 9 Cir., 1969, 409 F.2d 631, 634, and NLRB v. Globe Wireless, Ltd., 9 Cir., 1951, 193 F.2d 748. NLRB v. Buzza-Cardozo, 9 Cir., 1953, 205 F.2d 889, follows Globe Wireless where union representation of employees was in doubt.¹

Despite our allegiance to Draper the Board asks us to follow the rationale of NLRB v. R. C. Can Co., 5 Cir., 1964, 328 F.2d 974, 978-979. R. C. Can accepts the view that where minority activity supports the union's status or position, it is protected by section 7 notwithstanding any lack of union approval. In R. C. Can the union was involved in contract negotiations and by a "general consensus" had rejected a walkout. A small group of employees wished to pressure the employer into speeding negotiations and accordingly stopped work to picket two entrances to the employer's plant. A union representative persuaded the men to abandon the picket line, but it was approximately two weeks before the employer took the men back on the job. The court enforced a Board order premised on the illegality of the discharge. The R. C. Can opinion reasoned that because the strikers supported the union, the employer did not have to choose between conflicting demands of the union and the employee group. Thus it concluded that the activity was protected. A dissent emphasized that the strike tactics were not sanctioned by a union majority and concluded that the strike constituted unprotected dissident action.²

Dictum in NLRB v. Rubber Rolls, Inc., 3 Cir., 1967, 388 F.2d 71, also support the Board. Rubber Rolls was decided on other, narrower grounds, but the court recognized as a factor in these cases "that there is a practical advantage to a bargaining agent in extreme demands by individual employees which may aid the agent's more moderate position * * *." 388 F.2d at 73.

To summarize, we believe that the Board's current position could be stated as follows: The union itself could bargain about the desire for non-discriminatory hiring. Indeed, it may be an unfair labor practice for it not to represent the employees fairly, which representation includes a requirement that it must neither practice nor tolerate racial discrimination.³ Thus in this case it must be presumed that the union had adopted a position at least similar to that taken by the two individual employees. Then it must further be assumed that the strikers were acting in furtherance of the union's policies. Section 9(a) does protect majority choice against minority action. But where no interference can possibly be shown, all complaints and economic pressure should not be required to emanate from the bargaining representative. Moreover, the employer should...