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Race, Labor Unions, and American Political Development in the 20th Century
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matters to the EEOC.
69
In the post-Civil Rights Act era, the Board’s reluctance to engage in civil
rights matters was dramatically exemplified in Emporium and Western Addition Community
Organization, where it refused to separate civil rights activity from labor activity, allowing the
termination of civil rights activists for violating labor law when they protested their union’s
reluctance to counter-civil rights problems in the workplace.
70
The Board’s policy culminated in
Handy Andy, where it held that a plaintiff accusing a union of race discrimination should use Title
VII of the Civil Rights Act, not the NLRA.
71
In allowing the certification of a discriminatory
union to stand, the Board wrote: “a union that has discriminated actively in the past and still has a
racial imbalance may be preferable for minority workers to no union at all….[E]mployers faced
with the prospect of unionization will be provided and have been provided…with an incentive to
inject charges of union racial discrimination into Board certification and bargaining order
proceedings as a delaying tactic in order to avoid collective bargaining altogether rather than to
attack racial discrimination.
72
69
See “Jacob K. Javits, Committee on Labor and Public Welfare, to Arnold Ordman, General Counsel,
NLRB,” (October 14, 1966)(“While it is my understanding that the NLRA is not primarily designed as a law against discrimination based on race, but rather is geared to problems of labor-management relations and organizational rights, nevertheless, there is certainly no doubt that a number of provisions of the NLRA have a very direct de facto impact upon patterns of racial discrimination.” Records of the National Labor Relations Board, Record Group 25, Box 9, National Archives. Ordman responded a month later: “The NLRA is primarily designed as a law concerned with problems of labor-management-relations and organizational rights rather than racial discrimination. On the other hand, Title VII…is aimed directly at racial discrimination….I have deferred action in some cases on charges involving racial discrimination where charges have also been filed with the EEOC where it appears the Commission is actively investigating and if permitted to act might well be able to dispose of the case more expeditiously or more effectively than the Board would.” In Hill, Ibid, at 141. Board Chairman, Frank McCulloch, meanwhile claimed it “untimely” to further expand Board authority vis-à-vis the EEOC. “From Frank W. McCulloch, NLRB Chairman, to Stephen J. Pollack, First Assistant, Civil Rights Division, Department of Justice,” (October 19, 1966), Records of the National Labor Relations Board, Record Group 25, Box 9, National Archives.
70
The Emporium, 192 NLRB 173 (1971). This was affirmed by the Supreme Court in Emporium Capwell
Co. v. Western Addition Community Organization, 420 US 50 (1975). See Elizabeth M. Iglesias, “Structures of Subordination: Women of Color at the Intersection of Title VII and the NLRA, NOT!” Harvard Civil Rights-Civil Liberties Review 28:395, 421-22 (1993).
71
228 NLRB 447 (1977).
72
Ibid. at 452.
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18
matters to the EEOC.
69
In the post-Civil Rights Act era, the Board’s reluctance to engage in civil
rights matters was dramatically exemplified in Emporium and Western Addition Community
Organization, where it refused to separate civil rights activity from labor activity, allowing the
termination of civil rights activists for violating labor law when they protested their union’s
reluctance to counter-civil rights problems in the workplace.
70
The Board’s policy culminated in
Handy Andy, where it held that a plaintiff accusing a union of race discrimination should use Title
VII of the Civil Rights Act, not the NLRA.
71
In allowing the certification of a discriminatory
union to stand, the Board wrote: “a union that has discriminated actively in the past and still has a
racial imbalance may be preferable for minority workers to no union at all….[E]mployers faced
with the prospect of unionization will be provided and have been provided…with an incentive to
inject charges of union racial discrimination into Board certification and bargaining order
proceedings as a delaying tactic in order to avoid collective bargaining altogether rather than to
attack racial discrimination.
72
69
See “Jacob K. Javits, Committee on Labor and Public Welfare, to Arnold Ordman, General Counsel,
NLRB,” (October 14, 1966)(“While it is my understanding that the NLRA is not primarily designed as a
law against discrimination based on race, but rather is geared to problems of labor-management relations
and organizational rights, nevertheless, there is certainly no doubt that a number of provisions of the NLRA
have a very direct de facto impact upon patterns of racial discrimination.” Records of the National Labor
Relations Board, Record Group 25, Box 9, National Archives. Ordman responded a month later: “The
NLRA is primarily designed as a law concerned with problems of labor-management-relations and
organizational rights rather than racial discrimination. On the other hand, Title VII…is aimed directly at
racial discrimination….I have deferred action in some cases on charges involving racial discrimination
where charges have also been filed with the EEOC where it appears the Commission is actively
investigating and if permitted to act might well be able to dispose of the case more expeditiously or more
effectively than the Board would.” In Hill, Ibid, at 141. Board Chairman, Frank McCulloch, meanwhile
claimed it “untimely” to further expand Board authority vis-à-vis the EEOC. “From Frank W. McCulloch,
NLRB Chairman, to Stephen J. Pollack, First Assistant, Civil Rights Division, Department of Justice,”
(October 19, 1966), Records of the National Labor Relations Board, Record Group 25, Box 9, National
Archives.
70
The Emporium, 192 NLRB 173 (1971). This was affirmed by the Supreme Court in Emporium Capwell
Co. v. Western Addition Community Organization, 420 US 50 (1975). See Elizabeth M. Iglesias,
“Structures of Subordination: Women of Color at the Intersection of Title VII and the NLRA, NOT!”
Harvard Civil Rights-Civil Liberties Review 28:395, 421-22 (1993).
71
228 NLRB 447 (1977).
72
Ibid. at 452.
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