A. Defining the Context: Steele v. Louisville & N.R.R.
The duty of fair representation [hereinafter "the DFR"] was first imposed on labor unions in the case of Steele v. Louisville & N.R.R. (1) In Steele, the Brotherhood of Locomotive Firemen and Enginemen was party to a collective bargaining agreement with twenty one railroads operating in the south-eastern United States. A majority of the firemen employed by these railroads were white and were members of the Brotherhood. A substantial minority of blacks also worked for the railroads but were excluded from membership in the Brotherhood by the union's constitution and traditional practices.
In 1940, the Brotherhood, "purporting to act as representative of the entire craft of firemen," sought to amend the existing colletive bargaining agreement. The intention and impact of the amendments the union proposed and eventually negotiated would have been to exclude all black firemen from employment with the railroads. These amendments were negotiated without notice to the affected black workers and were put into effect before their existence was even disclosed. The lawsuit challenging these actions was brought by a black fireman who, pursuant to the amended collective bargaining agreement, was displaced along with other black firemen by four white members of the Brotherhood, all junior in seniority and no more qualified or experienced than the workers they displaced. (2) Among other things, the plaintiff sought an injunction prohibiting the union from purporting to represent him and other similarly situated blacks so long as the union continued to discriminate and refused to give them notice and a hearing with respect to proposals affecting their interests.
In Steele, the Supreme Court concluded that unions had a statutory duty to represent fairly the interests of all workers in any appropriate bargaining unit they purported to represent. According to the Court, union bargaining representatives are not agents of the workers they represent. Instead, the Railway Labor Act vested unions with the power of a legislative body -- to deal with employers and negotiate contracts fixing the terms of employment for the benefit of the entire unit, even at the expense, if necessary, of individual workers or groups of workers. Consequently, represented workers are bound to and governed by the distributive decisions of their union representatives whether they agree with those decisions or not. The very scope of power conferred on unions was, for the Court, the source and foundation of the limitations imposed by the duty of fair representation. Just as a legislature is subject to constitutional limitations on its power "to deny, restrict, destroy or discriminate against the rights of those for whom it legislates" as well as having an "affirmative constitutional duty equally to protect those rights," so too the union's power must also be limited -- otherwise the statute purporting to create such unlimited power would be constitutionally suspect. (3)
In short, the DFR was implied as judicial gloss on the Congressional intent underlying the Railway Labor Act in an effort to circumvent potential constitutional objections that would otherwise arise under the statute. Having defined the issue as a question of Congressional intent, the Court concluded that Congress did not, in fact, intend to confer unlimited power upon unions. While unions were intended to enjoy the legislative-like authority to create, modify and revoke the rights of represented workers, this power is limited by a duty of fair representation. According to the Court:
"So long as a labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty, which is inseparable from the power of representation conferred upon it, to represent the entire membership of the craft. While the statute does not deny such a bargaining labor organization the right to determine eligibility to its membership, it does require the union, in collective bargaining and in making contracts with the carrier, to represent non-union or minority union members of the craft without hostile discrimination, fairly, impartially and in good faith." (4)
The legislative-like power conferred upon unions by the Railway Labor Act was only one factor underlying the Court's decision to imply a duty of fair representation towards the plaintiffs in Steele. These workers were not and could not become members of the Brotherhood because the union discriminated against blacks. Consequently, the union's authority to represent the black workers was based not on the workers's "action or consent, but [derived] wholly from the command of the Act" which authorized the union to represent the black workers because a majority of the workers in their craft had chosen the Brotherhood as their bargaining representative. The black workers were thus being represented by an organization, that by excluding them from membership, excluded them from participation in the internal political processes through which the organization's distributional priorities were established.
Moreover, having been excluded from membership participation in a union chosen by the white majority of their craft, the black workers were, at the same time, prohibitted from attempting to represent themselves whether individually, collectively or through the intervention of another union. This was because the Labor Act required employers to bargain exclusively with the union elected by the majority of any craft constituting an appropriate bargaining unit (5) and because it had already been decided that "a craft or class of employees may not be divided into two or more on the basis of race or color for the purpose of choosing representatives." (6) Given the legislative-like power conferred on unions, the discriminatory membership practices which barred blacks from participating in the union's internal decisionmaking processes, and the lack of alternative avenues for separate representation, the Court concluded that "[u]nless the labor union representing a craft owes some duty to represent non-union members of the craft, at least to the extent of not discriminating against them as such in the contracts which it makes as their representative, the minority would be left with no means of protecting their interests or, indeed, their right to earn a livelihood by pursuing the occupation in which they are employed." (7) This result was unacceptable in light of the purposes of the Act.
According to the Court, employees were permitted to act through union representatives and unions were authorized to represent employees "for the purposes of the Act." These purposes were declared in Section 2, which refers to the avoidance of "any interruption to commerce or to the operation of any carrier engaged therein," through "the prompt and orderly settlement of all disputes concerning rates of pay, rules, and working conditions." (8) These purposes were at risk "if a substantial minority of the craft were denied the right to have their interests considered at the conference table and if the final result of the bargaining process were to be the sacrifice of the interests of the minority by the action of a representative chosen by the majority. The only recourse of the minority would be to strike, with the attendant interruption of commerce, which the Act seeks to avoid." (9)
Thus, the duty of fair representation first appeared as an obligation imposed upon unions in exchange for the state conferring upon them the power to determine the working conditions of minority workers, whom they were permitted to exclude from membership participation and who were legally prohibitted from establishing their own competing organizations. The purpose of imposing the duty was to avoid the constitutional and practical problems that might be generated by permiting the union to discriminate against a group it purported to represent. Since Steele, the duty of fair representation has been the subject of extensive judicial elaboration and legal scholarship. (10)
Rather than examining the network of restrictions and disabilities which adoption of the DFR purportedly legitimated, legal scholarship on the DFR has, for the most part, focused on elaborating theories in support of alternative legal standards for judicially reviewing the distributional decisions and administrative actions taken by union leaders, (11) that is, on establishing the standards for determining when the duty of fair representation has been violated, an issue the Court, itself, left open in Steele. (12) But the significance of Steele is not exhausted by the debate over the substantive standards that control judicial application of the DFR. On the contrary, as I argue below, this debate fails to address some of the more fundamental issues at stake in this area of the law. Indeed, my purpose is to illustrate an alternative approach to the duty of fair representation cases, an approach that seeks to understand the significance of this duty by examining the way it operates across institutional and doctrinal domains to expand the network of restrictions and disabilities which suppress the agency and withhold institutional authority from racial minorities in general and women of color in particular -- the very sorts of restrictions which the Steele decision was first intended to legitimate.
Thus, rather than focusing initially on the legal standards that govern judicial review of majoritarian decisions under the DFR, I look at the institutional structures that have been created through the invocation of the duty of fair representation in different doctrinal contexts where Title VII and the NLRA intersect. More specifically, I want to explore the way the duty of fair representation operates in five different contexts. The first section focuses on a series of decisions which ordered the integration of segregated union locals and established the conditions under which minority workers who oppose the discriminatory employment practices of their employers will be protected from retaliation. The second section examines the reasoning through which the Board rationalized its decision to permit the certification of discriminatory unions as exclusive bargaining representatives and decided the conditions for defining an appropriate bargaining unit for purposes of collective bargaining. The final section focuses on the way the duty of fair representation has played in the courts determination of the legality of race-conscious allocation of union offices.
In each of these contexts, the cases were decided by negotiating the boundaries between Title VII and the NLRA and invoking the fact of the duty of fair representation-- that is, invoking its existence as an alternative avenue of recourse. Crossing these domains is an important first step towards understanding the significance of this duty for women of color. The conclusion I ultimately draw is that the institutional arrangements maintained through the invocation of the DFR offer women of color such impoverished and ineffective avenues for agency or remedial recourse that whatever gains might be made by the successful assertion of a DFR violation in a particular case is more than offset by the systemic powerlessness it simultaneously legitimates and obscures. (13) This is because the way the courts invoke the DFR and negotiate the boundaries of Title VII and the NLRA in these cases establishes fundamental restrictions on the formation of institutionally effective collective alliances, restricts the opportunities for exercising agency, and ultimately ensure that our inclusion constitutes our submergence.
B. The Duty of Fair Representation: Channeling Agency and Allocating Institutional Power: Toward a First Understanding of Structural Violence
This section focuses on the way the duty of fair representation is invoked and the boundaries between Title VII and the NLRA are negotiated in a series of cases that ordered the integration of racially segregated unions and another series of cases that establish the conditions under which minority workers, who oppose race discrimination in the workplace will be protected from retaliation. The purpose of my analysis is to illustrate the cumulative impact of these decisions in constructing, or more precisely, in deconstructing the opportunities for collective alliance among and the exercise of transformative agency by women of color who inhabit the institutional arrangements that are constructed in and through these decisions.
To be sure, legal rules do not determine political identity or collective alliances. If the social practices to which we are subjected are important enough to generate or inspire a sense of shared experience and a common lot with others who are similarly affected, a court's failure or refusal to recognize or confer legal authority on that collective identity does not settle the matter. It may simply lead to "extra-legal" forms of collective action. (14) Indeed, as Professor Abraham has noted, the NLRA may have recognized the collective identity of workers as a class simply because, at the time, workers, infact, were acting as a class. Through this legal recognition, the NLRA participated in the consolidation of that identity, but it did not create it. (15)
Nevertheless, while legal rules do not determine the political identity we will assume, nor the types of alliances we will form, they do construct the institutional arrangements in which we must locate ourselves and each other. In the following sections, I want to illustrate how the political agency of women of color is institutionally deconstructed in and through the repeated recourse to the duty of fair representation and the strategic negotiation of the boundaries between Title VII and the NLRA. In all of these cases, the courts [or the Board] are concerned, in some way or another, with allocating institutional power and representational authority and with determining the legal parameters of collective identity formation. In each of these cases, the interpretative manuevers through which the cases are decided operate to negate the collective identity of women of color, whether by submerging the group as a demobilized subset of a broader collectivity [of "workers:" read white, read male] (16) or by fragmenting the group into its individual members. (17)
In other words, these cases maintain an institutional arrangement in which collective identity is externally defined, institutionalized and superimposed upon women of color, through the network of rules and restrictions that channel our alliances, restrict our authority and sanction our resistance. This external identity is formally colorblind and gender neutral. It purportedly represents the common situation and collective interests of the universalized "worker" in a capitalist economy. Nevertheless, the collective alliances and institutional arrangements that are organized around this universalized working class identity offer women of color few avenues of effective agency in the workplace.
Equally important, these institutional arrangements are constructed "piece by piece," as it were, in and through the process of adjudication. The relationship between these cases is not immediately obvious, nor do they appear even to be situated in the same discursive domains. This apparent lack of relationship is false, however, for these cases operate interactively to construct the terms and conditions of transformation as well as determining who will [not] be agents of transformation in the workplace. Cumulatively, they construct the institutional arrangements that constitute our social reality.
1. The Duty of Fair Representation in the Integration of Segregated Union Locals.
Almost thirty years ago, federal courts throughout the south invoked Title VII to compel the integretation of racially segregated unions in the longshoring industry. The court-ordered mergers occurred during the 1960s and 1970s. Some of the lawsuits were filed by the United States government, (18) others were brought by individual black plaintiffs on their own behalf and that of similarly situated longshoremen. (19) In all of the cases, the mergers were vehemently opposed, not only by white, but by black and latino union officials and by a majority of the black and latino workers these officials represented. (20)
Both the duty of fair representation and the courts' perception of the relationship between Title VII and the NLRA played an important role in these decisions to merge the locals. ILA Baltimore was one of the earliest cases to invoke the duty of fair representation in a union integration case. In that case, black union representatives sought to limit the district court's decree to the abolition of dual hiring halls and other reforms of the race-based practices prevailing at the Port -- short of merging the separate locals. The court rejected their position reasoning that:
Apart from further litigation, discrimination against black workers who aspire to non-gang jobs, such as gearmen, mechanics and foremen, can only be accomplished by bargaining with the stevedores. But the officers of the white local owe no duty to the members of the black local, and it is unrealistic to expect them to participate in hard bargaining on behalf of black longshoremen. The president of the white local, while conceding that he knew members of his local worked 300,000 hours more than members of the black local in 1968, admitted he had done nothing to correct this disparity because it was "not within my power." At best the union's committee approaches the bargaining table with divided legal responsibilities and loyalties. However, merger of the locals will place on all bargaining representatives, the statutory duty to eliminate racial discrimination throughout the Port. (21)
The court's reasoning was invoked again and again throughout the series of cases ordering integration of the segregated longshoring unions of the South. In EEOC v. International Longshoremen's Association, (22) black union representatives were particularly explicit about the impact the merger would have on the interests of black longshoremen and the black community in general. Testifying before the trial court, they asserted that:
[T]he Negroes, by having their own unions and their own union officials, have been able to better themselves by being able to hold high positions in their locals, and have been recognized in the community as a separate, powerful voice for the Negro communities, and has attained for them and the Negro people of the community, a standing which they could not have otherwise attained. (23)
Nevertheless, the court dismissed their objections. Quoting at length from the Fourth Circuit's opinion in ILA Baltimore, the court concluded that "[race] discrimination is more likely to be overcome when all of labor's negotiators have the statutory duty to oppose discrimination as compared to the case when only some will oppose it and others will be willing, at least, to tolerate the discrimination in return for other types of benefits." (24)
Merger was thus ordered, in part, on the theory that "apart from further litigation," (25) the black workers were unlikely to make substantial progress at the bargaining table absent a merger of the locals. The minorities who opposed the merger argued, however, that they did not need every representative at the bargaining table representing their interests because they were adequately represented by their separate representatives (26) and could, in any event, sue both the employers and the unions under Title VII if their defeat at the bargaining table were, in fact, racially motivated. (27) Rather than merging the locals, the court might have focused, instead, on developing legal doctrines that would make Title VII a more effective remedy against discrimination both at the bargaining table and in the employment decisions that were not then being channeled through the collective bargaining process. The court opinions dismiss this possibility by minimizing, without justification or argument, the existence of Title VII litigation as an important factor in assessing the necessity of merging the locals.
The duty of fair representation and its purported impact at the bargaining table is, therefore, crucial to the apparent "rightness" of these cases. If, infact, this assumed impact is incorrect, then the merger of these unions, the dissolution of black and latino organizations and their sub-merger into the majority dominated union, is an empty formality which has little to do with eliminating the conditions of subordination that racism entails. Worse than a formality, these mergers would constitute an affirmative disempowerment of minorities as a group. Instead of preserving for minorities the power of self-representation, these cases integrated blacks and latinos as a numerical minority in a majoritarian organization whose representatives are, by implication, accountable to them only through the duty of fair representation or through the very sorts of Title VII litigation, whose efficacy, the courts minimize. (28)
The relationship between Title VII and the NLRA is an implicit (rather than explicit) consideration in the Union Integration cases. Nevertheless, these cases clearly presuppose a particular vision of how these two regimes operate in structuring the processes of transforming the workplace. To some extent they appear to want to channel the elimination of race discrimination through the collective barganining system established by the NLRA, rather than through the courts, their underlying theory being that "collective bargaining on behalf of minorities is likely to end race discrimination more quickly than "further litigation" under Title VII." (29)
While the union integration cases invoked the DFR and an implicit assessment of the relative relationship between Title VII and the collective bargaining processes established under the NLRA, these cases were argued and are generally thought of in terms of the conflict between an individual's Title VII's right to be free of race discrimination and the first amendment rights of association of the workers who resisted integration. Having defined the issue in this way, the courts concluded that the right to associate did not include the right to exclude groups in the formation of an association even if the forced integration was resisted by and ultimately prejudicial to the interest of the groups which Title VII sought to protect (namely blacks and women).
Thus, in EEOC v. ILA, (30) the Fifth Circuit gave short shrift to the fact that minority workers were opposing the mergers. According to the Court, the burden imposed by Title VII on the officials seeking to maintain the segregated unions is "heavy" and requires them to show that "this organizational structure would not tend to deprive any individual of employment opportunities or affect his status as an employee." (31) Not surprisingly, the Court concluded that this heavy burden was not met. "[E]ven granting that present longshoremen, whether black or white, are paid the same wages, have equal numbers of representatives on the contract negotiating committee, and, under a common seniority and hiring hall, could be assured of an equal chance of obtaining longshore work," nevertheless, the segregated unions would still violate Title VII, for black workers, who might otherwise pursue employment as longshoremen, might be dissuaded from seeking these opportunities because of the "stigma" associated with working in an all black organization. According to the Court,
the terms of Section 2000e-2(c)(2) [must be interpreted] in light of th[e] judicial recognition of the harm to self-esteem that attaches to many black persons at the prospect of obtaining their goal through an involuntarily segregated mechanism -- whether that goal be education, transportation, recreation or, in the present case, employment. Once we do so it becomes apparent to me why the segregated locals currently before us must be merged. . . . Many black people who are about to embark upon a career will be dissuaded from becoming longshoremen because of the extra burden which attaches to that profession in the form of the psychic discomfort of segregation. That extra obstacle, in other words, tends to deprive them of their opportunity to become longshoremen. (32)
Consequently, the court concluded, "[i]t does not matter that many of the blacks currently in the segregated local have come to regard it as a voice of the black community. The effect of such segregation is likely to be viewed as a negative one by many blacks considering potential jobs and so long as one black so views it, the result of the practice is discrimination." (33)
The court's emphasis on the rights of minority individuals is echoed throughout the Reporters as one court after another rejected the claims asserted by the majority of black and latino union members who, in every instance, opposed the integration of their locals with the white majority. Thus, in William v. New Orleans, the court invoked ILA Baltimore to reject the black union's plea that:
"[o]ver the years, Local 1419 has regarded itself, and has been regarded by others, as a special spokesman and leader of the black community both on the waterfront and in economic, social and political affairs generally. It has used its resources and the energies of its officers and members to promote a wide variety of black educational, social and political programs in an effort to improve the lot of the black community. Local 1419 is a potent force on behalf of blacks in New Orleans and Louisiana." (34)
In response, the court simply noted that while the union's work might be "a noble endeavor," there was some "doubt that it is one which ought to be pursued under the direct auspices of a labor union." (35)
Bailey v. Ryan Stevedoring Co. (36) is, perhaps, the most compelling example of the courts' tendency to individualize the anti-discrimination mandate of Title VII. The case was a class action filed by Alton Bailey, a black longshoreman, against five stevedoring companies and two locals charging them with various discriminatory employment practices in violation of Title VII. In response to the lawsuit, 204 of approximately 230 members of Local 1830 filed a petition with the district court, asserting in pertinent part:
"We understand Boudreaux, Wells and Bailey claim to represent all black persons employed as longshoremen on the Port Allen docks since 1965 and all black persons who are members of Local 1830.
"We understand that they are seeking to join our black Local 1830 and the white Local together.
"We state Boudreaux, Wells and Bailey do not represent us as a class in their effort to integrate the unions. If the unions are integrated, we will lose (1) our right to equal jobs with the whites, (2) our right to elect our own officers and grievance committees, and (3) our rights to our own meetings and a chance to hold office and act for the black longshoremen to protect their interest.
"By maintaining our separate strength and not having it diluted by joining with the white Local we have been able to obtain the same wages, the same number of jobs and equal working conditions, including foremen and other jobs in the Port. If our Locals are put together a few dissatisfied black men can join with the white men and deprive the vast majority of black workers of their jobs and working conditions.
"We do not want these three men, Boudreaux, Wells and Bailey to act for us as a class in this suit and we do not want our Local Union destroyed. We understand that if any of us want to we have the right to join the white union or stay a member of the black union now. (37)
In denying certification of the proposed class action, the trial court concluded that "[t]he facts of this case clearly establish that the claims of [Bailey] are individual in nature and the issues raised by him are not issues common to any identifiable class too numerous to sue individually. . ." The suit was viewed, instead, as an individual action by Bailey "for no one's benefit but his own" and, after finding no evidence of race discrimination either in the volume or the nature of the work assignments, the trial court dismissed the complaint.
On appeal, the Fifth Circuit reversed. (38) The court agreed that "the views of a majority of the black longshoremen are antagonistic with those of . . . the would-be standard bearer for the proposed class." (39) Thus, the trial court's refusal to certify the class was not an abuse of discretion. Nevertheless, the trial court erred in refusing to issue the plaintiff's requested injunction against continued operation of the racially segregated locals. Relying on EEOC v. ILA, the court noted that Title VII proscribed any organizational structure that would tend to deprive any individual of employment opportunities on account of race. Accordingly, the court concluded that a union could appropriately be dissolved over majority objection at the instance of one single individual Title VII plaintiff.
In short, then, while the benefits minority workers and their communities had achieved through their separate union locals were implicit in the black workers' opposition to integration and explicit in their testimony before the courts, the judicial opinions never articulated a principled, normatively (as opposed to instrumentally) defensible rationale for preserving the separate locals, nor did the courts ever elaborate any perspective from which the separate unions might be understood as integral and instrumental in effectuating the anti-discrimination policies of Title VII. This is partly because the courts approached the issue by focusing on individual employment opportunites, which they conceptualized as separate and distinct from the community's status and power, and partly because they were operating within a colorblind vision of Title VII's anti-discrimination mandate -- a vision that fails to consider how allocation of institutional power across racial groups affects the prospects of racial equality and the role that unequal power plays in maintaining race-based subordination. [see infra n. ** and Goodman].
For racial minority workers, the practical impact of these decisions is discouraging, for these cases establish substantial obstacles for the organization of collective action as well as for the development of a common political identity. Efforts to institutionalize a collective identity in order to promote collective interests are thwarted, from the start, by an apparent commitment to advance or preserve the employment opportunities of individual employees, whether actual (40) or imagined, (41) who may not want to work through racially segregated locals.
1. 323 U.S. 192 (1944)(Railway Labor Act). See also, Ford Motor Co. v. Huffman, 345 U.S. 337 (1953)(applying the duty of fair representation under the NLRA).
3. Steele, at "If the Railway Labor Act purports to impose on petitioner and other Negro members of the craft the legal duty to comply with the terms of the contract whereby the representative has discriminatorily restricted their employment for the benefit and advantage of the Brotherhood's own members, we must decide the constitutional questions."
10. See e.g. Kenneth Kleinman, Seniority Systems and the Duty of Fair Representation: Union Liability in the Teamsters Context, 14 Harv. Civ. R. Civ.Lib.L.Rev. 712 (1979)(student comment); Fredric Leffler, Piercing the Duty of Fair Representation: The Dichotomy Between Negotiations and Grievance Handling, 1979 Law Forum, 35 (vol. 1); Matthew Finkin, The Limits of Majority Rule in Collective Bargaining, 64 Minn. L.Rev. 183 (1980); Ross Cheit, Competing Models of Fair Representation: The Perfuntory Processing Cases, 26 B.C. L.Rev. 1 (1982); VenderVelde, A Fair Process Model for the Union's Fair Representation Duty, 67 Minn. L.Rev. 1079 (1983); Mayer Freed, Daniel Polsby and Matthew Spitzer, Unions, Fairness, and the Conundrums of Collective Choice, 56 S.Cal.L.Rev. 461 (1983); Alan Hyde, Can Judges Identify Fair Bargaining Procedures?: A Comment. . ., 57 S. Cal.L.Rev. 415 (1984) Keith Livesay, Affirmative Action Programs: A Violation of a Union's Duty of Fair Representation?, 36 Baylor 155 (1984) (student comment); Michael Harper & Ira Lupu, Fair Representation as Equal Protection, 98 Harv. L. Rev. 1211 (1985) (advocating equal protection as exclusive model).
11. For a notable and refreshing exception see Karl Klare, The Quest for Industrial Democracy and the Struggle Against Racism: Perspectives from Labor Law and Civil Rights Law, 61 Oregon L.Rev. 157 (1982).
12. Steele at 203. "Without attempting to mark the allowable limits of differences in the terms of contracts based on differences of conditions to which they apply, it is enough for present purposes to say that the statutory power to represent a craft and to make contracts as to wages, hours and working conditions does not include the authority to make among members of the craft discriminations not based on such relevant differences."
13. Not to mention that the DFR has seriously failed us in numerous instances. See e.g. Seep v. Commercial Motor Freight, Inc., 575 F.Supp 1097 (1983); Barcume v. The City of Flint, No. 84-CV-8066-FL, April 11, 1986 (Eastern District of Michigan)(slip opinion); National Association for the Advancement of Colored People v. Detroit Police Officers Association, 821 F.2d 328 (6th Cir. 1987).
14. James Cone, BLACK THEOLOGY, BLACK POWER n. 28. "Black Power then is an expression of hope, not hope that whites will change the structure of oppression, but hope in the humanity of black people. If there is any expression of des[air in Black Power, it is despair regarding white intentions, white promises to change the oppressive structure. Black people now know that freedom is not a gift from white society, but is, rather, the self-affirmation of one's existence as a person, a person with certain innate rights to say No and Yes, despite the consequences."
15. See also David Abraham, Individual Autonomy and Collective Emplowerment in Labor Law: Union Membership Resignations and Strikebreaking in the New Economy, 63 N.Y.U.L.Rev. 1268 (1988) [hereinafter "Individual Autonomy"].
16. See e.g. United States v. International Longshoremen's Assocation, 460 F.2d 497 (1972) [hereinafter "ILA Baltimore"]; Handy Andy, 228 NLRB 447 (1977).
17. See Emporium Capwell, infra,
18. See e.g. United States v. International Longshoremen's Asssociation, 460 F.2d 497 n.2 (1972) [hereinafter ILA Baltimore]; E.E.O.C. v. International Longshoremen's Ass'n, 623 F.2d 1054, 1056 n. 4 (1980). Both lawsuits were originally brought by the Attorney General under 42 U.S.C. Section 2000e-6(a). However, effective March 1974, that jurisdiction was transferred to the EEOC by 42 U.S.C. Section 2000e-6(c) hence the EEOC became a substituted party in the second case.
19. See e.g. Bailey v. Ryan Stevedoring Co., Inc., 528 F.2d 551 (1976); Williams v. New Orleans S.S. Ass'n, 466 F.Supp. 662, 680 (1979) (class actions brought by black plaintiffs).
20. See United States v. Longshoremen's Ass'n, 334 F.Supp. 976, 978 (S.D. Texas 1971); Bailey v. Ryan Stevedoring Co., Inc., 528 F.2d 551 (1976) (black union members resist class certification); Williams v. New Orleans S.S. Ass'n, 466 F.Supp. 662, 680 (1979) (same).
21. ILA Baltimore, 460 F.2d at 501 (1972) (emphasis added).
24. EEOC v. ILA, 511 F.2d at 279; Williams, 466 F.Supp. 662, 681 (1979) (concluding that "representatives of separate unions charged with only serving that union cannot be realistically expected to act strongly on behalf of the other union and, consequently, . . . agreements between labor and management emerging from bargaining by one union on behalf of all longshorement rather than one charged with serving white employees and the other with serving black employees will better the employment status of all employees.").
25. EEOC v. ILA, 511 F.2d 273, 279 (1975).
26. The benefits black longshoremen and the black community in general had achieved through the institutionalization of separate representation was noted by numerous courts. The Fifth Circuit noted that "[i]n most of the ports the work was divided on a 50% 50% basis between the black and white locals. There were no wage differentials between those in the white and those in the black locals. The . . . union committee, which bargain[ed] with the shippers for the labor agreements which control the Texas ports, [was] made up equally of black and white members. . . [and] while in some of the ports the mean take home pay for a white longshoreman is higher than that for a black longshoreman, this [was] at least in part a function of the fact that black locals ha[d] chosen in their own discretion to confer seniority and therefore job eligiblity on more men by employing laxer standards." ILA Baltimore [II], 511 F.2d 273, 274 (1975). In Williams v. New Orleans, 466 F.Supp. 662, 680 (1979), the separate unions were merged even though the court acknowledged that the black locals was "larger, wealthier and better maintained than [the white local], better services its member's needs . . . provides substantial benefits which the latter does not and cannot provide an is free from substantial debt, unlike [the white local]."
27. See Black Grievance Committee, (where more than one employee organization is functioning in the workplace and none is established as exclusive representative, an employer may not discriminate among the organizations on the basis of race).
28. Indeed, suspicions that the union integration cases may have been an empty formality are further supported by the fact that (1) the mergers were ordered despite clear evidence that integratation would actually prejudice the employment opportunities of black and latino longshoremen, E.E.O.C. v. International Longshoremen's Ass'n, 623 F.2d 1054 (1980) (fact that employment opportunities of members of Mexican-American local would be prejudiced by integration with white and black longshore locals is irrelevant); and that (2) the Title VII mandate which was deemed compelling enough to warrant merger of the locals was not sufficiently compelling to warrant an immediate dissolution of segregated work gangs, ILA Baltimore, 460 F.2d 502-6 (applying business necessity defense).
29. ILA Baltimore, supra n. ***.
31. EEOC v. ILA, 511 F.2d at 277.
32. EEOC v. ILA, 511 F.2d at 278.
33. Garza II, 511 F.2d at 278.
35. Id. at 680. Compare Robert L. Allen, BLACK AWAKENING IN CAPITALIST AMERICA (1990) discussing importance of community institutions to combat the incoherence of ghetto life.
36. 528 F.2d 551 (1976) (class certification denied; case dismissed) reversed in 528 F.2d 551 (5th Cir. 1976) (individual had standing to challenge racially segregated unions to get preliminary injunction ordering merger) on remand 443 F.Supp. 899 (1978) (mandate ignored on the strength of East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891 (1977)) on second appeal 613 F.Supp. 588 (1980) (original mandate to issue injunction reinstated).
37. Bailey, 528 F.2d 551, 553 (1976).
40. Bailey v. Ryan Stevedoring (action commenced by black plaintiff); Williams v. New Orleans S.S. Ass'n, 466 F.Supp. 662 (1979) (same).
41. EEOC v. ILA, 511 F.2d at 278 (discussing the hypothetical black worker who might be dissuaded from entering the longshoring industry because of added "psychic discomfort" of working through racially segregated locals). Of course, the "psychic" discomfort of working through the segregated locals may be preferrable to the "material" discomfort of having no work at all because of the racist/sexist practices of an exclusive bargaining representative controlled by a white male majority. See infra n. ** (Seep, DPOA, Barcume).