I hope it’s not churlish of me to link, on Labor Day, to this piece by Paul Moreno which details what can only be described as a history of massive resistance by the American labor movement to equal employment opportunity for African-Americans and other minority group members. In the first half of the 20th century union racism mirrored that of society as a whole. However, by mid-1960s, a national consensus had emerged against employment discrimination, as reflected in the passage (after the Senate had invoked cloture) of the Civil Rights Act of 1964. Yet big city unions, especially in the building trades, steadfastly refused to comply with the Act for years thereafter.
This was not a matter of protecting seniority rights. As Moreno notes, the 1964 Act honored bona fide seniority systems. Instead, union non-compliance often consisted of the raw exclusion of blacks from employment opportunites quite apart from any seniority arrangement.
In fact, this pattern of non-compliance was the basis for the first government-mandated racial quotas. As Moreno explains, President Johnson’s Labor Department devised a set of “goals and timetables” to increase the number of blacks in the notoriously “lily-white” construction trades, and the Nixon administration implemented these plans. In addition, federal courts of appeals at times imposed remedial quotas (properly in my view) as a last resort in response to the repeated failure of union defendants to comply with court orders requiring non-discrimination. Some of these cases dragged on for a decade or more, with multiple trips to the appellate court. Non-compliance on this scale was virtually unheard of among private employers.
Union racism also helps explain why non-class action discrimination claims by employees represented by unions must be tried in court. A garden variety race discrimination claim challenging the discipline, termination, or non-promotion of a union member would seem like grist for labor arbitration mill. However, in the 1960s and 1970s, unions could not be counted upon to fairly represent African-Americans in these proceedings. Thus, as the Supreme Court correctly held in 1974, Congress did not foreclose an employee’s statutory right to trial de novo in federal court even where his or her claim was submitted to binding arbitration under the nondiscrimination clause of a collective-bargaining agreement (the Court cited my law review note on the subject in footnote 20).
Today, systemic union racism is a thing of the past, but so is most of the power unions wielded in their heyday.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
“Proclaim Liberty throughout All the land unto All the Inhabitants Thereof.” Inscription on the Liberty Bell