Western Addition Community Organization v. NLRB, No. 71-1656.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWYZANSKI, Senior (dissenting
Citation485 F.2d 917
PartiesWESTERN ADDITION COMMUNITY ORGANIZATION v. NATIONAL LABOR RELATIONS BOARD, Respondent, The Emporium Capwell Company, Intervenor.
Docket NumberNo. 71-1656.
Decision Date29 June 1973

485 F.2d 917 (1973)

WESTERN ADDITION COMMUNITY ORGANIZATION
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
The Emporium Capwell Company, Intervenor.

No. 71-1656.

United States Court of Appeals, District of Columbia Circuit.

Argued May 25, 1972.

Decided June 29, 1973.


485 F.2d 918
COPYRIGHT MATERIAL OMITTED
485 F.2d 919
Kenneth Hecht, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of Court, with whom Edward H. Steinman, Santa Clara, Cal., and Lee M. Modjeska, Mill Valley, Cal., were on the brief for petitioner

Stephen C. Yohay, Atty., National Labor Relations Board of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., National Labor Relations Board, were on the brief for respondent.

George O. Bahrs, San Francisco, Cal., was on the brief for intervenor.

Martin I. Slate, Atty., Equal Employment Opportunity Commission, of the bar of the United States District Court for the District of Columbia, pro Lac vice, by special leave of Court with whom Julia P. Cooper, Chief, Appellate Section, Equal Employment Opportunity Commission, was on the brief for Equal Employment Opportunity Commission as amicus curiae urging reversal.

Before ROBINSON and MacKINNON, Circuit Judges, and WYZANSKI,* Senior United States District Judge for the District of Massachusetts.

MacKINNON, Circuit Judge:

This case is before us on the petition of the Western Addition Community Organization to review an order1 of the National Labor Relations Board which dismissed a complaint issued against The Emporium (hereinafter referred to as the Company) for alleged violations of section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. (hereinafter referred to as the Act).2 The Company is engaged in the operation of a retail department store in San Francisco, and was a member of a multi-employer group, the Retailer's

485 F.2d 920
Council, which served as its bargaining agent. The Retailer's Council, was a signatory to a collective bargaining agreement with the Department Store Employees Union (hereinafter the Union) which was the exclusive representative of the Company's employees employed in the stock and marking areas at the store. The applicable collective bargaining agreement contained an anti-discrimination clause,3 and provided that grievances arising out of the agreement "may be referred to the Adjustment Board,"4 and possibly submitted to arbitration.5 The agreement also contained no-strike and no-lockout clauses

In a series of meetings in early April 1968, a group of Company employees including Tom Hawkins and James Joseph Hollins submitted to the Union representatives a list of grievances in which the employees contended that the Company was discriminating against racial minorities. Claiming that racial bias had caused minority employees to be denied promotions, the employees at the outset centered their complaint and specifically charged that employee Russel Young had been denied advancement solely because he was Black. Following these meetings, Union Secretary-Treasurer Walter Johnson designated a Union committee to investigate the allegations, and later that month prepared a detailed report outlining the employees' contentions which "raised . . . the possibility not solely of Young's complaint but of racial discrimination."6 (Emphasis added.) Shortly thereafter, Johnson presented his report to the Retailer's Council, where it was agreed that the grievances should be taken directly to the Company. Accordingly, in mid-April Johnson met with the Company labor relations manager and it was agreed that the Company "would look into" the situation and "see what they could do."7

In May, a group of ten employees requested an additional meeting with Johnson. The problem of racial discrimination in general and the Russel Young case in particular were again discussed; however, since Young was about to begin his summer vacation, it was agreed that further investigation of the matter should await his return. On about September 3, Johnson again met with the employees, including Hawkins and Hollins, and with representatives of the Fair Employment Practices Committee (FEPC) and the Economic Opportunity Council (EOC), and announced that the Union had considered the problem and had concluded that the Company had been acting discriminatorily. Further, the Union stated that it would demand an Adjustment Board proceeding and would insist upon arbitration if necessary. While acknowledging that arbitration was a time-consuming procedure, Johnson pointed out that the arbitration award, once achieved, would produce a "long lasting effect" which would benefit

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not only the employees having immediate interest in the problem, but "other people involved in it" as well.8

However, the program outlined by Johnson did not satisfy all of the employees. Some of those present expressed "frustration" with the situation and requested that the Union picket the Company's store. Johnson rejected the idea and explained that the Union was bound to seek satisfaction of grievances according to the terms of the collective bargaining agreement. He also stated that though he told the minority employees, including Hawkins and Hollins, that it was his advice that they follow the Adjustment Board and arbitration procedures, he stated that "if they wanted to take any other action they could do it as individuals and do whatever they wanted as individuals."9 The EOC and FEPC representatives also recommended that the contract procedures be followed.

The next day Johnson wrote the general manager of the Retailer's Council requesting a meeting of the Adjustment Board to resolve the grievances discussed at the previous day's meeting. Johnson told the Council

We specifically charge the Emporium with violations of the anti-discrimination clause of the Agreement between the San Francisco Retailers Council and the Union. We have approximately 120 pages of testimony, recorded by a court reporter to substantiate our position.
We are ready to proceed to immediate arbitration if the Emporium is agreeable.10

In response to this letter, on October 16 a meeting was convened of the Adjustment Board.

As the meeting began, Union Agent Williams attempted to present evidence of the Company's practices by questioning employees regarding their individual grievances. However, he was interrupted by Hollins who, speaking for himself and three other employees,11 read a prepared statement objecting to the prosecution of grievances on an individual basis. Those employees did not want to "speak as individuals," but would act only "as a group."12 Further, Hollins

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stated that the group "wanted to talk to the President of the Emporium and wouldn't talk to anybody else," since 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 Emporium."13 Then, after refusing to give any testimony regarding individual employees' complaints, the four walked out of the meeting. A second meeting was held of the Adjustment Board two days later, but none of the four attended.14

Shortly thereafter, Hollins went to the Company president requesting that they "talk about a situation that Hollins felt should be discussed about things that were happening among minority employees at the store."15 The Company president would not speak to Hollins, but suggested that he talk instead to the Company's personnel director. Hollins refused to talk to the personnel manager, having previously spoken to him about the situation.

Hawkins and Hollins, together with several other employees, called a press conference on October 22 which was attended by representatives of the press, radio and television. The employees stated that the Emporium was engaging in racist conduct by discriminating against racial minorities and that the employees were planning to picket the store. Hollins also read a handbill which the group intended to distribute to the public, and further stated that they "were planning on leafleting and boycotting the store because they felt that employees were not being treated fairly, minority employees were not being treated fairly as far as working conditions was sic concerned."16 On the following Saturday, November 2, Hollins, Hawkins and two other employees picketed the store from 9:30 a. m. to 6 p. m., distributing the following handbill to people entering and leaving the store:

BEWARE EMPORIUM SHOPPERS

BOYCOTT IS ON!!!

FOR YEARS AT THE EMPORIUM BLACK, BROWN, YELLOW, AND RED PEOPLE, HAVE WORKED AT THE LOWEST JOBS, AT THE LOWEST LEVELS. TIME AND AGAIN WE HAVE SEEN INTELLIGENT HARD WORKING BROTHERS AND SISTERS DENIED PROMOTIONS AND BASIC RESPECT.

THE EMPORIUM IS A 20TH CENTURY COLONIAL PLANTATION THE BROTHERS AND SISTERS ARE BEING TREATED THE SAME WAY AS OUR BROTHERS ARE BEING TREATED IN THE SLAVE MINES OF SOUTH AFRICA.

WHENEVER THE RACIST PIG AT THE EMPORIUM INJURES OR HARMS A BLACK SISTER OR BROTHER, THEY INJURE AND INSULT ALL BLACK PEOPLE. THE EMPORIUM MUST PAY FOR THESE INSULTS. THEREFORE, WE ENCOURAGE ALL OF OUR PEOPLE TO TAKE THEIR MONEY OUT OF THIS RACIST STORE, UNTIL BLACK PEOPLE HAVE FULL EMPLOYMENT AND ARE PROMOTED JUSTLY THROUGHOUT THE EMPORIUM.

WE WELCOME THE SUPPORT OF OUR BROTHERS AND SISTERS FROM THE CHURCHES, UNION, SORORITIES, FRATERNITIES, SOCIAL CLUBS, AFRO-AMERICAN INSTITUTE, BLACK PANTHER PARTY, W.A.C.O. AND THE POOR PEOPLE'S INSTITUTE.

485 F.2d 923

While the picketing was in progress, Johnson spoke with Hollins telling him that he did not want to see Hollins fired and suggested that the only way to resolve the matter was through arbitration under the collective bargaining agreement. Hollins responded that they only wanted to talk with the Company president.

On November 7 Hollins and...

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