NATIONAL LABOR RELATIONS BOARD - THIRD TERM  1973-1978


 
 
TABLE OF CONTENTS
 
 
National Labor Relations Board
 
 

 
National Labor Relations Board
 
 
 
 
 President Carter

 
 
President Carter

 
 

On October 10, 1973, Howard Jenkins, Jr. was re-appointed to the NLRB by President Richard M. Nixon. In Jubilee Manufacturing Company 202 NLRB 272 (1973), the Board  rejected the rational of the United Packinghouse court setting forth when a violation under the NLRA would occur because of an employer's acts of invidious discrimination. The Union alleged sexual discrimination. The Administrative Law Judge concluded the record was insufficient to establish that the employer had developed and practiced a policy of discrimination based on sex. This determination precluded a decision on the United Packinghouse issue - whether an employer's policy and practice of invidious discrimination interferes with or restrains the discriminated employees in exercising their Section 7 rights in violation of Section 8(a)(1) and (3). The Board agreed that the allegations could be dismissed because discrimination is not inherently destructive of employees' Section 7 rights. There must be actual evidence, as opposed to speculation, of a nexus between the alleged discriminatory conduct and the interference with, or restraint of, employees in the exercise of those rights protected by the Act.  Jenkins' dissent relied on Steele and United Packinghouse. Jenkins found the employment policies and practices of the employer illegal, and as such, were inherently destructive of employee rights under Section 7 and such conduct violated Section 8(a)(1) and (3) of the Act. 

The Congress amended the Taft-Hartley Act 1970 to place the U.S. Postal Service under the NLRB's jurisdiction. The Postal Service Reorganization Act substituted an arbitration procedure for a guaranteed right to strike. The Congress also gave the Board jurisdiction over the health-care industry (1974), major league baseball (1969), private, non-profit college and universities, foreign government-owned corporations doing business in the U.S. (1977), law firms (1977), and professional soccer (1978). Howard Jenkins, Jr. found it difficult to fit industrial concepts into the health field. 

Bekins Moving and Storage 211 NLRB 138 (1974) reaffirmed principles of Hughes Tool Co. but  was not a unanimous decision. The employer contended that the Board was precluded from holding a union election because the Board had a constitutional duty not to certify a discriminatory union. Dissenters maintained that the Board had no authority to deny certification. Jenkins stated that "what the Board lacks is not the statutory power to withhold their certificate, but rather the constitutional power to confer it." Jenkins claimed that the duty of fair representation is in the Constitution as well as in the statute. Howard Jenkins and William Miller were the only ones for denying certification to labor unions who had practices, but not policies, of racial discrimination. 

New Member appointments realigned the sitting participants.  Jenkins dissented in Handy Andy, Inc., 228 NLRB 447 (1977).  There, the majority overruled Bekins, holding that neither the Fifth Amendment nor the NLRA requires the Board to resolve questions of invidious discrimination in certification proceedings.  In his dissent, Member Jenkins maintained that the majority undercut Hughes Tool which held that on constitutional grounds discriminatory practices by a union required denial of representation privileges.  The Board decided that there was no nexus between Board certification and any discrimination undertaken by a labor union's activity and that a certification is only an acknowledgement that a majority of employees voted for the union as their representative.  Handy Andy, Inc. was the Board's last major opinion regarding which cases alleging union invidious discrimination could come before the Board.

 

 

 

1973 - Handy Andy

 
 
 
1973 - Handy Andy

 

1977 - President Ford


1977 - President Ford
 

Table of Contents


Previous Chapter   Next Chapter

Related Sites
 Reference