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Howard Jenkins, Jr. was re-appointed by President
Jimmy Carter on September 15,1978. Bell & Howell Co. 230 NLRB 420 (1970),
598 F.2d 136 (D.C. Cir. 1979), cert. denied, 442 U.S. 942 (1979) gained
appellate court support for the Handy Andy rationale. The case involved a
company alleging that the Union practiced invidious discrimination
based on sex. The Board denied the motion to disqualify and ordered issuance of
certification. Jenkins dissented, citing his dissenting opinion in Handy
Andy. The Court of Appeals enforced the NLRB's order. The
Court endorsed the Board's Handy Andy position that challenge of alleged
union practices of invidious discrimination through Section 8 in lieu of
withholding certification would best effectuate the purpose of the NLRA.
But in NLRB v. Heavy Lift Services, Inc. 234 NLRB 1078 (1978), enforced
607 F.2d 1121 (5th Cir. 1979), the Fifth Circuit reaffirmed the Eighth
Circuit's Mansion House decision - that the Constitution requires withholding
certification of a union practicing invidious discrimination, and affords
an employer the opportunity to prove such discrimination as an affirmative
defense in a charge alleging a Section 8(a)(5) refusal to bargain violation.
Member Jenkins, citing his dissenting opinion in Handy Andy, added
to his Bell & Howell dissent: "The availability of other remedies
does not legitimize this unconstitutional conduct. The Constitution does
not permit an arm of the Government to participate in invidious discrimination,
against women or any other persons, until other remedies come into play."
Jenkins, illustrating the short comings resulting from the Handy Andy
approach ended by noting that Bell & Howell claimed the Union's discriminatory
practices had an effect of excluding women from employment as stationary
engineers; and as a consequence, there would not be a bargaining unit member
to even seek enforcement of the Union's statutory obligations.
The Bell & Howell decision seemed to accord
the Board an important procedural victory to end the decade of the seventies.
But on December 5, 1979, the Fifth Circuit in the NLRB V. Heavy Lift
Services, Inc., 607 F.2d 1121 (1979), stated that if the employer had
supported its allegations with a sufficient amount of evidence, the claim of
race discrimination would properly have been before the Board.
The final paragraph of the dissenting opinion in Bell & Howell highlights Board Member
Jenkins' deep and ever abiding concern and commitment that all employees-regardless
of race, creed, color, sex, religion, or national origin - must be fairly
represented by their statutory bargaining representative, and the NLRB' responsibility
to insure them this protection. Member Jenkins', dissent
states that: "The national policy against discrimination in employment is
poorly served by this decision of my colleagues. Moreover, this decision
represents a clear abrogation of our constitutional duty to refrain from
sanctioning, assisting , supporting invidious discrimination. Indeed, this
decision marks a step backward for all those who would seek the good offices
of our Agency to combat discrimination whether it be on the basis of race, creed,
color, sex, religion, or national origin."
On August 27, 1983 Howard Jenkins, Jr. tenure on the NLRB came to a
close. Howard dedicated twenty years of his life as a member on the NLRB.
His record during these years illustrates that he believed that labor rights
should be equally protected for all by the National Labor Relations Board.
In Howard Jenkins, Jr. letter of resignation to President of the United
States, Ronald Reagan, he stated that: " In my four terms spanning
twenty years on the Board, under appointments by both Republican and Democratic
Presidents, it has been a pleasure to have helped formulate many important
principles and decisions which have, with court approval, become a major
part of our national labor policy. Among these, and one in which I took
the lead, is the now well-accepted principle that race and sex discrimination
are unfair labor practices prohibited by the National Labor Relations Act" |
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