Labor Law and the Negro

...Unlike Hughes Tool, racial discrimination was not the issue under discussion...

...The Steele case assumed that the union could determine eligibility for membership, and the Taft-Hartley amendments left this as an internal union matter...

...It is nevertheless probable that unions will now exercise greater care in handling the problems of individuals who lack political power...

...This was in stark contrast to Hughes Tool, where the union was acting in accordance with the contract...

...There is one vital problem which Hughes Tool case did not decide: the right of the Negro to obtain membership in a union whose rules allow "Caucasians only...

...But the story, all too familiar in many plants in the South, took an unusual turn when that refusal became the subject of an unfair labor practice proceeding before the National Labor Relations Board...

...William B. Gould is an attorneyadvisor with the National Labor Relations Board in Washington...

...And many craft unions are so powerful that loss of certification will not remove them as bargaining agents...

...The Board bears practically all expenses in cases it examines...

...From the union viewpoint, the most serious worries derive from the broad implications of this new duty of fair representation...

...While it is true that many of the CIO unions organized Negroes and whites together in the '30s, even these unions are not completely absolved from responsibility for the disproportionate number of Negro workers in lower paid and menial job classifications...

...If the union is required to process a grievance in the face of employer resistance, how far does its duty extend...

...From this point it was an easy jump to the Hughes Tool ruling that racial considerations in collective bargaining are invidious...

...Union officials are fearful that their whole mode of bargaining and trading away of grievances at contract time will be upset if anyone can challenge part of this process as "unfair...

...But is it really possible for Negro workers to have equal representation when they are forced into separate auxiliary locals or excluded entirely from membership...

...The Negro worker will naturally prefer to get his case heard before the NLRB rather than the Equal Employment Opportunity Commission established by the Civil Rights Act, which requires that state agencies be utilized first and, moreover, places no enforcement power in the Commission's hands...

...Besides, the argument goes, the NLRB is not equipped to judge the wide variety of cases falling under this standard...

...These factors point up the practical significance of the Hughes Tool decision and could well put new strains on the Negro-labor alliance...

...Here the union had arbitrarily deprived an employe of certain seniority rights and refused to entertain his grievance...

...The Board may be asked to decide if the Hughes Tool logic can extend this far or if, as a matter of policy, all such cases should be handled by the Equal Employment Opportunity Commission...

...Both bodies, said the Court, must heed the same type of constitutional limitations while engaging in action which affects minority groups...

...After the Civil War many Southern Negro skilled workers were forced out of their positions by the unionization of whites...

...Some may argue that such action will help no one—least of all the victims of discrimination whose plant community may only become more distant from Board processes...

...How labor leaders will assess these developments may well depend on how the Board treats discriminatory acts or policies of employers in future cases...

...How can the latter be as responsive to the excluded Negro worker as to the white worker who votes in the union election...

...To avoid this dilemma a new legal theory is required...

...The non-member does not participate in the collective bargaining decisions and has no influence in the choice of union officers...

...But the undisguised effort to move Negro workers out of their railway jobs in the Steele case was an extreme instance of racism...

...The school desegregation decisions suggest another area the NLRB may be called upon to investigate...

...In all fairness to the industrial unions, they often have been confronted with a system that antedates their arrival...

...JOB DISCRIMINATION Labor Law & the Negro By William B. Gould When Ivory Davis bid on the newly established apprenticeship program at the Hughes Tool plant in Houston, Texas, he must have understood the upheaval that would follow his simple request for advancement...

...In 1962, in its Miranda decision, the Board applied the fair representation standard for unions to the National Labor Relations Act (Taft-Hartley...

...Even without the race issue, intra-union politics can be savage...

...But another genuine concern has been that a forthright position for equal opportunity will be too far in advance of the mores of union constituencies...

...Something additional was needed to combat a more common day-today discrimination...

...In 1944 the Supreme Court, in Steele vs...

...The Board found the union clearly had breached the collective bargaining agreement which articulated seniority rights...

...Louisville and Nashville Railroad, held that the statutory bargaining representative under the Railway Labor Act had a duty to represent and protect the interest of all employes equally— just as a legislature must afford equal protection for all who come within the scope of its legislation...

...Obviously the craft unions will react with great feeling if they believe the Board is interfering too much with their apprenticeship programs and hiring halls...

...The Board further agreed, unanimously, that the certification issued to a union that achieves majority status through a Boardconducted election must be revoked where the contract serves "to perpetuate racial discrimination in employment...

...Whether the Hughes Tool principle will stand up in the courts is of course another question...

...Hughes Tool was not the first decision to begin filling the void...

...Of course, the Board might require the parties to submit the grievance to impartial arbitration...

...One union leader said with an air of resignation: "There is only one court that will uphold the Board in this decision...

...This defensive response is triggered in part by the fear that the Hughes Tool decision will only comfort those who would weaken the bargaining power of unions and whose interest in the Negro is purely incidental...

...The Supreme Court...

...In Miranda it was held that a union could not affect the employment status of any employe in an "unfair," "irrelevant," or "invidious" manner...

...The union's defense has been that the Negro workers' lack of union membership is the critical factor in their action...

...On July 2, the very day President Johnson signed the historic Civil Rights Act, a closely divided Board held that the union's refusal to process grievances for racial considerations was an unfair labor practice under the Taft-Hartley Act...

...They will say, and quite often correctly, that their unions have fought for civil rights legislation and economic programs benefiting both black and white workers...

...There can be little doubt that this bold departure was but the initial spadework in a significant new body of labor law...

...His views here are his own, and not those of the Board or its members...

...More serious, however, is the behavior of the craft unions...

...Support for this fear can be found in Senator Goldwater's co-sponsorship of a bill to prohibit racial discrimination by unions and his abrupt about-face when the Civil Rights Act extended this principle to employers as well as unions...

...Loss of certification means the employer is no longer required by Federal law to bargain in good faith with the union...

...It was "almost revolutionary," in the words of Robert L. Carter, NAACP general counsel—not merely for the principle established but, perhaps equally important, because litigation before the Board can travel along a route that is relatively uncomplicated, inexpensive and efficient...

...If the Board holds the union acted unlawfully, this could permit disadvantaged Negroes to bypass union procedures—unlike Davis, whose Hughes Tool victory only granted him access to a procedure —and to obtain direct advancement in a job market from which they had been excluded...

...As a matter of sound policy and logic, the employer should have equivalent standards imposed upon him, as has been done in the Civil Rights Act...

...It is difficult to say what practical results will come from revoking a union's certification...

...The buildup of union power —with government assistance— could make the existence of the segregated local itself an unfair labor practice...

...Must it never trade away any grievance alleging racial discrimination at a late stage in the grievance procedure...

...And most recently, in Galveston Maritime Association Inc...

...the second racial bias decision of the NLRB, holding that work assignments made upon a racial basis are unlawful), a Board majority has indicated clearly that racial segregation or discrimination in union membership will be viewed as "inherently unequal and unfair representation" in future unfair labor practice cases...

...If the Board embarks on a campaign to rid union monopolies of racial discrimination, the crafts undoubtedly will view the drive as a threat to the monopolies themselves...

...It is unrealistic to speak of the union as a voluntary association in the sense of a private or social club...

...This principle will be opposed by those who argue that Congress has manifested a clear intent to have such matters heard only by the Equal Employment Opportunity Commission, which will come into being next July...

...But the courts may not be anxious to uphold Board orders if they become convinced that the parties are being coerced into accepting new terms...

...Many union leaders will be understandably sensitive and indignant about the unfavorable publicity future unfair labor charges will bring to them...

...For Davis is a Negro, treasurer of the allNegro Independent Metal Workers Union, Local 2; and the collective bargaining agreement made these apprenticeships "white men's jobs," the exclusive property of the members of all-white Local 1. Not surprisingly, Local 1 refused to file a grievance on his behalf against the system...

...But this venture may prove necessary if Hughes Tool is to be meaningful in the national sense...

...Only the law can properly assure Negroes of fair representation...

...This seemed fatal to his protest, since Local 1 was the only channel for grievances...

...The Board reasoned that the privilege of being exclusive bargaining representative for all employes carried with it the duty to represent each one fairly...

...As a matter of labor law, the Board's notion that the duty of fair representation springs from the union's position as bargaining representative would seem to leave the employer without responsibility for discriminatory contract provisions...

...Does the judgment of "separate but equal" as inherently unequal and psychologically harmful make segregated plant facilities unlawful...

...At present, unfair labor practice charges are being heard in New York resulting from the failure of George Meany's plumbers local to work with Negro job applicants...

...Negro workers must find it difficult to view unionization as an unqualified blessing...

...often Negro workers, sacrificed to such exigencies, lack effective representation...

...Here the union may be caught in the crossfire between an adamant white membership and a management that may find the ensuing chaos to its advantage...

...Today the control that craft unions exercise over employment through apprenticeship programs and hiring halls frequently constitutes an almost impregnable barrier to Negro job applicants...

...The exclusion of Negroes from skilled jobs is a problem not only in the South but throughout the nation...