28
conducted by private persons whom the government does not control.”
108
Blumrosen was right
about the simple threat of litigation, and in certain situations it seemed to work. The President of
the Building Trades, Peter Schoemann, for example, backed off of his vocal opposition to
affirmative action in 1968 because he was “persuaded…by the danger of exposing our local
unions and apprenticeship programs to the so-called ‘pattern or practice of discrimination’
suits….If we want to remain free…it is absolutely imperative that we institute affirmative action
programs.”
109
Numerous unions offered to settle and sign consent decrees. In an effort to avoid
“massive amounts of back pay,” for instance, the United Steelworkers signed a nation-wide
consent decree to avoid the “unworkable and inconsistent rules written by judges” that
“threatened bankruptcy of many local unions and severe crippling of the International.”
110
More often than not, however, conciliation failed as many unions resisted affirmative
action efforts or the EEOC and private plaintiff lawyers demanded extensive sums of back pay
and damages.
111
The number of cases in federal courts rose dramatically, and the litigation
increase put great financial stress on unions, forcing even the most resistant among them to make
108
Alfred W. Blumrosen, Black Employment and the Law (New Brunswick: Rutgers University Press,
1971), at 44; also see Skrentny, Ibid; Herbert Hill, “The Equal Employment Opportunity Acts of 1964 and
1972: A Critical Analysis of the Legislative History and Administration of the Law,” Industrial Relations
Law Journal 2:1 (1977); Robert C. Lieberman, “Ideas, Institutions, and Political Order: Explaining Political
Change,” American Political Science Review 96: 697 (2002).
109
Peter T. Schoemann, “United Association and Affirmative Action—Report to UA Membership from
General President.” (March 27, 1968), Jewish Labor Council, “AFL-CIO Civil Rights Department, 1963-
68,” Robert F. Wagner Archives, NYU. He went on: “for those who hold the other point of view, we
carried the fight just about as far as we could….The building trades need a single policy in this area. We
had no such policy, and the only policy that had a Chinaman’s chance of getting unanimous support…was
a policy of affirmative action.” “You might think you have never seen a Negro applicant in your life, and
you might be an honorable man, but this will not necessarily save your life if you become a defendant in
one of those suits….if these suits continue over time, the Justice Department is bound to try all kinds of
sociological legal theories, and attorneys tell me that if they try them often enough, they are going to win at
least some of them.”
110
Steelworkers Civil Rights Decree, 1974, 1.
111
See Stein, Ibid, at 194 who argues that “The new regulators in OFCC and EEOC made the process more
contentious than it need have been. They ignored unions that were prepared to cooperate.”
Convention