Like the integration cases, Emporium Capwell was concerned both with the appropriate relationship between Title VII litigation and the collective processes and institutions of the NLRA and with the relative priority of individual and collective rights. Somewhat surprisingly, however, the only similarity in the way these cases resolved the disputed issues is the way the duty of fair representation was invoked to legitimate the submergence and demobilization of minorities within a broader collectivity controlled by a white majority.
Doctrinally, Emporium Capwell turned on resolving the relationship between a union's status as exclusive bargaining representative under Section 9(a) (1) and the employees' right to engage in concerted activity under the protection of Section 7. (2) The case arose as a result of the employer's retaliatory discharge of two black workers who were involved in organizing a picket and a community boycott to protest the employer's racially discriminatory employment practices. (3) When the workers were discharged, a community civil rights organization brought suit against the employer under Section 8(a)(1) of the NLRA. (4)
Because Emporium Capwell plays a central role in the argument I am developing, a further statement of the facts will be helpful. The Union's efforts to address complaints of employment discrimination began in April 1968 when the Union wrote a letter taking an official position that the Emporium was discriminating against workers on the basis of race. The letter was distributed to union members and presented to the Retailer's Council, the bargaining agent for the multi-employer unit with which the Emporium was affiliated. (5) Shortly afterwards, the Union held a series of meetings attended by a number of black employees, including the two employees who were later discharged. (6)
The discussion at these meetings focused primarily on complaints about the Emporium's failure to promote a black worker, named Russell Young, and other individual cases of discrimination. Union officers informed the group of black workers that they wanted to process every race discrimination grievance through to arbitration if necessary. At the same time, a Union representative stressed "that it [wa]s going to take a long time in some of these cases, but that the [black grievants] would not only be helping themselves, but other people . . . " (7) After one of the meetings, the Union sent another letter to the Retailer's Council, charging that the Emporium had violated the anti-discrimination provisions of the collective bargaining agreement and requested that the Adjustment Board be convened to hear the case. When the Board convened, four black employees (who had been attending the Union's meetings) stated that "they would not participate [in the grievance proceedings] as individuals but only as a group; that they objected to prosecuting grievances on an individual basis and wanted the matter of racial discrimination presented as an issue affecting all employees belonging to minority races; that they insisted on meeting with the [Emporium's] President and they would
not go ahead with the Adjustment Board hearing." (8) The four employees walked out of the hearing. (9)
Later, after unsuccessful efforts to meet with the Emporium's President, several of the workers held a press conference. Their statements were substantially similar to the message in the pamphlet which they later distributed while peacefully picketing on their own time on a following Saturday. (10) The very next Thursday, the Emporium's manager of labor relations called the two workers into his office and handed them a warning notice, which asserted that the statements made at press conference and contained in the pamphlets were untrue and that their intent and likely consequence would be to harm the Emporium's reputation. The notice further warned that the workers would be fired if they repeated their activities. (11) Despite the warning, the workers picketed for a second time on the following Saturday and two of them were immediately discharged on Monday. (12)
Adopting the findings and conclusions of the Trial Examiner, the Board concluded that the employees' protest activities, though concerted, were not protected by Section 7 because they amounted to "nothing short of a demand that the [Company] bargain with the picketing employees for the entire group of minority employees." (13) According to the Board, a demand for separate bargaining was in derogation of the union's status as exclusive representative under Section 9(a). Affording Section 7 protection to this kind of activity "would undermine the statutory system of bargaining through an exclusive, elected representative, impede elected unions' efforts at bettering the working conditions of minority employees, 'and place on the Employer an unreasonable burden of attempting to placate self designated representatives of minority groups while abiding by the terms of a valid bargaining agreement and attempting in good faith to meet whatever demands the bargaining representative put forth under the agreement.'" (14)
A. The Appeals Court Decision: A Unified Labor Policy
On appeal, the D.C. Circuit acknowledged that in some cases the principle of exclusive representation established by Section 9 might require denial of Section 7 protection to concerted activity by dissident individuals and groups. (15) Nevertheless, while the structure of governance established by the NLRA affords unions broad discretion to prioritize among the competing interests of individual members, the right to be free from racial discrimination was, according to the court, an individual right secured by federal law, not by the collective bargaining process. (16) Consequently, even as exclusive bargaining representatives, unions had no authority to compromise, waive or in anyway dilute an individual's enjoyment of Title VII rights to be free from discrimination. While a union might in other cases subordinate the interests of particular individuals in order to further the interests of the majority, "on the issue of whether to tolerate racial discrimination in employment the individuals in a union cannot legally disagree." (17) Thus, in denying the black employees Section 7 protection, the Board not only failed to recognize a fundamental limitation on the bargaining representative's authority; (18) it also failed to give appropriate weight to the independent statutory foundation, which supported the rights asserted by the black workers (19) and protected the very activities for which they were discharged. (20)
The D.C. Circuit's opinion is significant on a number of levels, for the court articulates a specific vision of the relationship between Title VII and the NLRA and of the Board's role with respect to that relationship. According to the court, the NLRA is to be interpreted in light of the anti-discrimination policies of Title VII because both statutes embody and attempt to effectuate a unified national labor policy. To interpret either statute in isolation would have unintended consequences, as for example, converting the NLRA's principle of exclusive representation into broad authority for unions "to control the scope direction, pace and degree of racial discrimination." (21) Thus, while the Board's primary responsibility is to interpret the NLRA and to effectuate its policies, as a federal agency, the Board must also see that its interpretations of the Act are not inconsistent with the policies underlying other major federal legislation, specifically Title VII. As the court noted, "the Board has an obligation in construing the acts which it administers to recognize, and sometimes reconcile, coexisting and perhaps inconsistent policies embodied in other legislation." (22)
The court's opinion also reflects a value judgement about which policies must prevail in the event of a conflict at the intersection. For the D.C. circuit, the national policy of eliminating race discrimination takes precedence over the NLRA's policy of promoting "orderly collective bargaining." While concerted activity by racial subgroups might undermine the stability associated with exclusive representation, the court considered the "disruptive effect . . . to be outweighed where protection of minority activity is necessary to full and immediate realization of the policy against discrimination." (23) Accordingly, the court carved out a narrow area of protection for racial subgroups protesting race discrimination in cases where the union's efforts fall short of a standard requiring the union to be "actually remedying" the discrimination "to the fullest extent possible, by the most expedient and efficacious means." (24) Since the black workers in Emporium Capwell could reasonably believe that the union would move more effectively towards eliminating race discrimination by entering into collective bargaining negotiations regarding the employer's hiring and promotion policies rather than
by processing individual grievances, their concerted protests could not be denied Section 7 protection. (25)
B. The Supreme Court's Decision: The Fragmentation of Doctrinal Domains.
The Supreme Court purportedly agreed with the D.C. Circuit both that the NLRA and Title VII should be interpreted as elements of a unified national labor policy and that eliminating racial discrimination is a highest priority of that "unified" policy. (26) The Court also recognized that Section 7 protection would give the black workers access to the enforcement procedures of the NLRB, which the Court reluctantly acknowledged might be instrumentally superior to the procedures established for enforcing Title VII. (27) Nevertheless, the Court refused to afford Section 7 protection to racial subgroups engaged in concerted activities in support of their demands for non-discriminatory employment policies.
The Court's reasoning involved several different moves. Analytically, the first and perhaps most significant move was to separate Title VII and the NLRA or rather, more precisely, to fragment the national labor policy across two doctrinal domains, conceptualized as distinct and discontinuous. Thus, in rejecting the D.C. Circuit's argument that neither the employer nor the union could legimitately object to bargaining with black workers demanding non-discriminatory employment policies since both had an obligation under Title VII to eradicate racial discrimination, the Supreme Court responded by distinguishing the substantive rights established by Title VII from those established by the NLRA, most specifically, the right to engage in collective action applying economic pressure in support of collective demands. (28) The Court later elaborated this distinction in addressing the workers' more specific claim that failure to afford their protest activities the protection of Section 7 would undermine the Congressional policy to protect employees engaged in conduct opposing unlawful discrimination -- a policy expressly manifested in Section 704(a) of Title VII.
According to the Court, the fact that a particular conduct (like employee opposition to race discriminatory practices) might be protected under Title VII does not mean that it should be protected under the NLRA. (29) Instead, the issue whether employee conduct is protected under Section 7 must be determined exclusively by reference to NLRA precedents, which define the sorts of activities protected by the statute in light of the NLRA's own distinct policies and purposes. If an authoritative interpretation indicates that protecting the conduct at issue would be inconsistent with those policies or purposes, then Section 7 protection must be denied regardless of how the conduct would be treated under Title VII. The conduct may still be protected, but only under Title VII. (30)
The Court's decision not only distinguished the substantive rights established under Title VII and the NLRA. It also held that the substantive rights created under one legal regime would not be enforced through the procedural mechanisms of the other (or at least, that Title VII substantive rights would not be enforced through NLRA procedures, which includes the protection of concerted action). The black workers objected to this result on the grounds that Title VII procedures were "inadequate to effectively secure the rights conferred by Title VII." For lack of an adequately developed record, the Court withheld judgment on the merits of this argument. (31) Nevertheless, the Court asserted that even if true, the argument would not alter the Court's decision as it was more appropriately addressed to Congress, which, according to the Court, had intentionally established the procedural distinctions between the two regimes. (32) To interpret Title VII and the NLRA in a way that permitted the substantive norms of one regime to be enforced through the procedures of the other would be "to override a host of consciously made decisions well within the exclusive competence of the Legislature." (33)
C. Modeling the Regimes, Considering the Consequences
The conflict between the opinions of the D.C. Circuit and the Supreme Court may be characterized as different models of the relationship between two legal regimes. (34) Analytically, the Supreme Court's first move was to replace the D.C. Circuit's model, in which Title VII operates not only as an external and substantive limit on the types of decisions that will be permitted to emerge from the procedural structures established by the NLRA, but is also directly relevant to inpreting and evolving the institutions and processes established under the NLRA. In the Supreme Court's model, Title VII is essentially an external regime. While concrete actions governed by the NLRA may also be challenged under Title VII, the NLRA creates a separate and distinct domain, whose substantive contours are interpreted and whose procedural mechanisms are triggered by reference to its own policies and doctrines independent and apart from the doctrines and policies of Title VII.
In other words, while the model adopted by the appeals court makes Title VII policies and doctrines an operative factor in the evolution of NLRA precedents, under the Supreme Court's decision, Title VII's non-discrimination principle becomes merely an issue warranting "sensitivity." (35) Consequently and contrary to the Court's assertions -- both that it recognized a unified national labor policy and that non-discrimination was "a matter of highest priority" of that policy, the Court's decision in Emporium Capwell ensured that the policy promoting the resolution of industrial conflict and increasing the standard of living of American workers through collective bargaining would be articulated and enforced in one procedural framework and doctrinal domain, while the policy prohibitting race and gender based discrimination would be articulated and enforced in a very different framework/domain.
Understanding the way this fragmentation of Title VII and the NLRA operates through the different legal contexts under consideration is one of the first steps toward understanding the concept of law as structural violence. The argument can be made at multiple levels. At one level, the argument is that by fragmenting Title VII and the NLRA into separate doctrinal domains, Emporium Capwell did much more than simply limit the extent to which the whole power of the state could be used to eliminate race and gender subordination in the workplace. (36) In fact, the fragmentation of these regimes created an interpretative context in which the inconsistent and biased treatment of crucial conceptual structures, like the relationship between individual and collective rights (37) and the relationship between group membership and fair representation, (38) would remain, for the most part, hidden. From this perspective, legal interpretation produces structural violence against women of color because the fragmentation of these regimes hides from us, and often, perhaps, from the judges themselves, the extent to which the same interests and identities that are negated in the interpretation of one regime are also negated in the interpretation of the other.
A comparison of Emporium Capwell and the union integration cases will provide an initial example. In the union integration cases, black and latino workers were denied the authority to maintain an independent collective identity as a result of the courts' judgement that collective rights and majority interests must give way to the individual's Title VII rights. The segregated locals were merged despite the vehement and compelling opposition of the majority of black and latino workers, who believed that integration would prejudice their interests, on the theory that the separate locals violated Title VII -- if so much as only one individual could show that the arrangement "tended" to deprive him of equal employment opporunity. As a result, black and latino workers lost an important institution through which they had been able to advance their collective interests, both in the workplace and in the local community. (39)
Like the integration cases, Emporium Capwell also denied minorities an independent collective identity. After fragmenting Title VII and the NLRA into separate regimes, the Court reviewed the policies and prior precedents established under the NLRA and concluded that the black workers' were not entitled to Section 7 protection. This time, however, the suppression of minority collective agency was effected on the theory that the Title VII rights the black workers were attempting to enforce through their collective action were individual rights that must give way to the majority's collective rights. A further examination of the Court's reasoning will clarify the problem.
In denying the black workers claim under the NLRA, the Court acknowledged that Section 7 guarantees employees the right of "industrial self-determination;" nevertheless, the Court characterized these rights as being "for the most part, collective rights to act in concert with one's fellow employees; they are protected not for their own sake but as an instrument of the national labor policy of minimizing industrial strife "by encouraging the practice and procedure of collective bargaining." (40)
According to the Court, a central feature of this collective bargaining process is a commitment to majority rule. Under the industrial relations system established by the NLRA, the majority, in any appropriate bargaining unit, determines whether the unit will be unionized and who shall represent it. (41) Moreover, it is the majority's interest which the union is bound to represent and must attempt to further. (42) Accordingly, a system of majority rule implies that minority interests will give way to majority preferences:
"Central to the policy of fostering collective bargaining, where the employees elect that course, is the principle of majority rule . . . In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority . . . As a result, the complete satisfaction of all who are represented is hardly to be expected." (43)
According to the Court, the NLRA was designed to establish conditions under which collective bargaining would be an effective vehicle for promoting the collective interests of workers as a group. Within this framework, efforts to bargain separately are viewed with suspicion, whether they are initiated by an employer or an individual worker. (44) On the one hand, separate bargaining is a strategy employers routinely use to make the sorts of appeals that divide workers and throw individuals into such competition that, ultimately, every individual is worse off than she would have been had she subordinated her individual interests and held out with her co-workers for the collective good. On the other hand, even if some individuals do manage to extract superior terms or conditions in separate bargains than they would have obtained, as group members, through the collective bargain, the presumption is that these advantages are obtained at the expense of other group members.
Emporium Capwell operates within and seeks to maintain an industrial relations system in which the majority's interest is furthered by denying individuals the power of self-determination and requiring them to submit their individual interests to a collective decision-making process. The normative justification for this system construes collectivization as a reflection of worker "solidarity" and solidarity as a commitment to promote the common or collective good over individual self-interests. (45) The instrumental justification promotes collectivization as a means of developing institutional arrangements in which workers can confront employers on an "equal" basis. Only the power of a union can successfully confront and counteract the power of management. (46) Accordingly, collectivization is viewed, instrumentally, as the worker's best hope for securing his interests, even if the cost is the centralization of authority and the suppression of individual self-determination.
These two accounts of collectivization converge in Emporium Capwell and provide the Court's basis for withholding Section 7 protection from the black workers who were discharged as a result of their collective protest activities. (47) Drawing on these images, the Court construed the black workers' Section 7 claim as a request for "special treatment," that is, as a request that the Court carve out an exception to the principle of exclusive representation for the "special" benefit of racial minorities. (48) The black workers' protest activities were construed as a breach of solidarity because they constitute efforts to promote the "special" interests of some individuals at the expense of the collective interests of the whole.
For our purposes, the important point is that the Court's reasoning in Emporium Capwell raises significant questions about the "rightness" of the integration decisions, even as the integration cases raise significant questions about the "rightness" of Emporium Capwell. If individual Title VII rights prevail over majority rights in the union integration cases, then why do they not also prevail in Emporium Capwell? Alternatively, if majority rights (based on the majority's interest in maintaining the power of its collective representative) prevail over individual Title VII rights in Emporium Capwell, then why doesn't the majority's interest also prevail over those same rights in the union integration cases? (49) Collective action and the legal recognition of collective identity are surely as crucial to the advancement of black and latina workers as they are to the advancement of the white majority.
The answer seems to be that the resolution of the individual/collective rights conflict is, in both instances, mediated through a vision of group identity that is formally colorblind and gender neutral. The problem is that the practical consequence is to imprison minorities in institutional arrangements in which they can hold no effective power. The structure of institutional power that is maintained, at one end, by Emporium Capwell and at the other by the union integration cases constitutes racial minorities as a demobilized subset submerged in the majoritarian institutions it constructs and consolidates.
For women of color, the practical disempowerment effected by this structure is exponentially multiplied. Being situated at the intersection of multiple socially constructed categories, women of color are constituted as members of various groups, whose most common characteristic, from our perspective, is that we are most often numerical minorities. (50) Equally important, these ostensibly gender/color blind collectivities operate to deconstruct women of color, both as concrete individuals and as a collective political identity.
A recent article by Professor Harris provides a valuable point of departure. (51) In this sensitive and enlightening work, Professor Harris tells us that:
"[W]e are not born with a "self," but rather are composed of a welter of partial, sometimes contradictory, even antithetical "selves." A unified identity, if such can ever exist, is a product of will, not a common destiny or natural birthright. Thus, consciousness is "never fixed, never attained once and for all"; it is not a final outcome or a biological given, but a process, a constant contradictory state of becoming, in which both social institutions and individual wills are deeply implicated." (52)
Professor Harris calls this self-experience "multiple consciousness," and I affirm this account as an accurate depiction of my own self-consciousness -- of the way I experience myself as an "I," being for myself, an "I," a "you" and a "she." (53) Nevertheless, even as I experience myself as fluid, fragmented and evolving, I recognize that I am, for others, both fixed and formulated -- a woman, a hispanic. Thus, my fragmented self-consciousness is not simply a direct response the overwhelming abundance which constitutes the socio-phenomenal world in flux, but also a product of my experiences as a concrete individual, who is constantly renegotiating my identity in a politically segmented social reality which I desire both to understand and to transform. The "essentialism" which suppresses one aspect or another of my self-consciousness is not simply a theoretical approach, but (as illustrated by Emporium Capwell and the union integration cases) a constitutive principle through which the institutional structures which organize my interactions with others have been constructed. (54) Just as mainstream theory reflects the perspective of the speaker who purports to speak for all, social structures (like the gender/color blind majoritarian collectivities into which we have been channeled) are reified artifacts, which reflect and embody the experience and intentions of those who initially designed them and those whose decisional practices and discourse reconstitute them on a daily basis. (55)
These social structures constitute the concrete reality in which we must find ourselves and each other -- the problem is that we do not -- a point which was well made in a recent article by Professor King. (56) For the woman of color, American society and its institutions present a reality in which she finds no home for herself as an integrated whole -- where community and an opportunity to participate are enjoyed only at the expense of some signficant aspect or another of herself. (57)
In our context, the more important point is to understand that the negation of race and gender as a distinct and legitimate basis for collective action and identity formation construct a structure of institutional power[lessness]. Both the union integration cases and Emporium Capwell refuse to recognize the workers' collective identity as blacks [not to mention, but by implication, as women as well] (58) as a legitimate basis for exercising institutional power or claiming legal recognition. In both instances, this collective identity is negated by fragmenting the minority groups into their individual constituents and incorporating those individuals (as individuals rather than as groups) into the majority's "colorblind" collectivity, where they will hold no effective institutional power whether as individuals or as members of the out-numbered minority group.
The move is explicit in the priority given individual rights in the union integration cases and implicit in Emporium Capwell's refusal to the collective nature of the black workers' claims and protests. Framing the issue in Emporium Capwell as a conflict between individual and collective rights was positively ironic, since it was precisely the union's individualized case by case approach to racial grievances to which the black workers objected and against which they mobilized. (59) The dissidents were not acting to further their own individual self-interests, but rather to promote the collective interests of subordinated racial groups within an institutional arrangement dominated by another racial subgroup, namely white male workers and their representatives. (60) As Justice Douglas noted in dissent, "[t]he employees were engaged in a traditional form of labor protest, directed at matters which are unquestionably a proper subject of employee concern." (61)
Recognizing the irony is not enough. The problem is the Court's vision of collective identity. Like the union integration cases, Emporium Capwell ignores the impact of race/gender discrimination on an individual's political self-identity and group allegiances. It presupposes that every worker (regardless of race or gender) is similarly situated insofar as she is torn between her individual self-interests and a common interest in the "collective good" pursued by the majority's exclusive representative. By presupposing a simple one dimensional conflict between individual self-interest and the collective good, the Court was able to ignore the existence of subordinated communities, whose collective interests may claim the allegience of individual members even as those interests differ both from the majority group's interests as well as from the personal "self" interests of individual group members. (62) Indeed, by invoking the readily available rhetoric of "factions" and "special interests," the Court was able to delegitimize the black workers' efforts at collective self-help and, at the same time, avoid any consideration of the way in which the allocation of institutional power among different groups of workers determines which interests will be deemed "special" or private self-interests and which interests will be deemed "collective" or in the "common good." (63)
But the Emporium Capwell opinion operates on other levels, as well. Like the union integration cases, Emporium Capwell invokes the duty of fair representation and a potential Title VII action against the employer and/or the union. By doing so, the Court creates an impression that while minority workers may be unable to influence the processes through which the majority (or its union representatives) decide how to handle race discrimination complaints, they are not without recourse. Since black workers have alternatives other than disruptive protesting or separate bargaining, the Court may focus entirely on "the costs" of separate bargaining by racial minorities. The question, of course, is
whether "the costs" outweigh the "benefits." For the Court, they most certainly do. Its reasoning is worth exploring.
According to the Court, the costs of separate bargaining and collective action are evident and substantial. Given a limited number of positions, "an employer confronted with bargaining demands from each of the several minority groups would not necessarily be able to agree to remedial steps satisfactory to all at once." (64) According to the Court,
"Competing claims on the employer's ability to accommodate each group's demands, e.g., for reassignments and promotions to a limited number of positions, could only set one group against the other even if it is not the employer's intention to divide and overcome them. Having divided themselves, the minority employees will not be in position to advance their cause unless it be by recourse seriatim to economic coercion, which can only have the effect of further dividing them along racial or other lines." (65)
Moreover, "[w]ith each group able to enforce its conflicting demands -- the incubent employees by resort to the contractual processes and the minority employees by economic coercion -- the probability of strife and deadlock is high; the likelihood of making headway against discriminatory practices would be minimal." (66) The problem with this reasoning is that it suggests that withholding from minority workers the authority to assert their separate interests will somehow resolve "the conflicting demands" and unify the workers. Implicit or explicit, this suggestion is a lie. To deny self-identified racial subgroups the power of self-representation on issues of race discrimination on the ground that separate bargaining will splinter workers into competing subgroups is simply to ignore the fact that these groups have already been constituted and individual interests have already been fragmented across the divisions which discrimination has, in the course of human events, created. Indeed, in a workforce divided by race and gender discrimination, withholding Section 7 protection accomplishes very little toward resolving those divisions. The number of positions is still limited, the workers' interests are still divided across race and gender lines and their competing claims remain unmet, at least, not to the satisfaction of "all." The only thing accomplished is to concentrate institutional power in the white-dominated union officers and restrict the number of demands the employer must confront and resolve, both purchased through the submergence of minority interests and demobilization of minority agency.
The point of this analysis is to illustrate the fact that the way the courts negotiate the relationship between Title VII and the NLRA is one of the major vehicles through which legal interpretation produces structural violence. By fragmentating these two regimes, the courts maintain an interpretative context in which the inconsistent priority accorded individual and collective rights in these separate contexts and the practical consequences and fundamental issues this inconsistency raises are hidden from view. At the same time, the fragmentation of Title VII and the NLRA has a much broader impact than simply providing a context in which the individual and collective rights conflict could be blindly manipulated. Rather, it is the interpretative manipulation of the relationship between these two regimes which reproduces the structural violence in which we see the systematic negation of our political identities and collective agency. It might be argued, for example, that the reversed priority given to individual and collective rights in the union integration cases and Emporium Capwell is not inconsistent at all. Responding to this suggestion will further clarify my argument.
Recall that in Emporium Capwell, the Supreme Court rejected the claim that Section 7 of the NLRA should be interpreted to further the national policy against race discrimination as reflected generally by the passage of Title VII and more particularly by the protection Section 704(a) affords individuals engaged in oppositional conduct protesting violations of Title VII. (67) In so doing, the Court rejected an interpretative approach that would have required the policies of each statute to inform the interpretation of the other, and instead invoked a model of disconnected legal regimes with distinct substantive rights and procedural structure to define the relationship between Title VII and the NLRA.
From one perspective, the union integration cases arguably reaffirm and vindicate the legitimacy of this model. If we ignore the impact on minority collective agency, (68) one might argue that the union integration cases demonstrate the lengths to which courts will go in affirming Title VII rights once they are asserted in the appropriate forum. (69) Minority workers have only to invoke Title VII properly, and their Title VII rights will take precedence not only over the majority will, which the NLRA is designed to further, but even over the majority's very existence as a legal entity.
If this attempted reconciliation can withstand criticisms stemming from its suppression of minority agency, it cannot withstand the impact of King v. Illinois Bell Telephone Co. (70) [or, for that matter of Goodman v. Lukens Steel Co.], (71) for here it is the relationship between Title VII and the NLRA, itself (rather than the priority between individual and collective rights), that is at issue -- its resolution analytically incoherent -- its practical consequences once again the suppression of minority agency.
In King v. Illinois Bell, the relationship between Title VII and the NLRA was once again examined, this time in the context of a Section 704(a) claim. (72) The plaintiff, William King was a draftsman at the Illinois Telephone Company. About a year after he was hired, a group of black employees presented the company's representatives with a list of grievances alleging numerous instances of race discrimination and communicated their refusal to work until the grievances were resolved. When they were suspended from work, they formed a picket line outside the company's corporate headquarters in Chicago. Although King was not involved in these initial activities, he and other employees, both black and white, joined the picket line at some later point. The picketing occurred during working hours.
Two days after he joined the demonstrators, King represented the group as their spokesperson in a meeting with company officers. They warned King that the demonstrators would be fired if they did not return to work and, indeed, a few days later King and the others demonstrators were discharged. About a month later, a number of the employees were asked to return and be considered for re-employment. Eight of the fifteen employees who returned were re-hired. King was not.
While the Company claimed that King was a poor worker with a poor attitude, King claimed that this was a pretext -- that, in fact, the Company's refusal to re-hire him was both racially motivated and in retaliation for his participation in the work stoppage and picketing activities, which King claimed were protected by Section 704(a). The Company, on the other hand, argued that the strikes were not protection under Section 704(a) because they were conducted by union members during working hours in violation of a no-strike clause contained in the union's collective bargaining agreement with the Company. In resolving the dispute, the court found it necessary to construe not only Title VII, but also to exmaine the policies emboddied in the NLRA since "strikes are an integral part of our labor laws." (73) According to the court,
"this issue raises significant questions concerning the interplay and accomodation of important policies embodied in the NLRA and Title VII. The former was designed to eliminate economic warfare between employer and employee, such as strikes and lockouts, through the use of collective bargaining and, peaceful arbitration of labor disputes . . . The latter manifests a Congressional intent to achieve equality of employment opportunity by eliminating those practices that discriminate on the basis of race, color, religion, sex or national origin." (74)
Reviewing the Supreme Court's decision in Emporium Capwell, the King court noted that Emporium Capwell had expressly declined to decide whether the discharged employees were protected by the opposition conduct clause of section 704(a) of Title VII. Nevertheless, after quoting the Court for the proposition that Title VII rights "cannot be pursued at the expense of the orderly collective-bargaining process contemplated by the NLRA . . . [whether they are thought to depend upon Title VII or have an independent source in NLRA]," the King court concluded that it was "reasonable to infer that the Court would reject the argument that an employee's Section 704(a) right to oppose employment discrimination encompasses the use of work stoppages which are prohibited by the terms of a collective bargaining agreement." (75)
The evolution of doctrine from Emporium Capwell to King v. Illinois Bell is as significant as it was predictable. (76)
If King represents the ultimate resolution of the issue left undecided in Emporium Capwell, namely, the degree to which Section 704(a) protects concerted activity that is unprotected under the NLRA, then the relationship between Title VII and the NLRA is not afterall distinct and discontinuous. On the contrary, while Emporium Capwell ensures that the rights and privileges established by the NLRA will not be expanded to accomodate the anti-discrimination policies of Title VII, King v. Illinois means that the rights established under Title VII will be contracted to accomodate the policies and objectives of the NLRA. As a result the anti-discrimination mandate of Title VII is subordinated to the policies of the NLRA in both regimes.
Consider now the impact of this structure on women of color who inhabit the concrete workplaces that are regulated by these intersecting regimes. The individual woman of color finds herself situated at the intersection of a network of instititutional arrangements that fragment her individual identity and diffuse her political identity. Each regime offers an alternative set of incentives and opportunites that not only conflict with each other, but converge upon her in a manner that negates, by ignoring, the integrity of her concrete reality as an individual situated at the intersection of the multiple practices of race/gender/class based oppression.
Collective action through unions is the recognized vehicle through which working people protect and promote their interests, yet given the union integration cases she cannot realistically hope to establish a union in which she would be majority member. (77) To support unionization, as a minority/woman, may further her class interests, but perhaps at the expense of her race/gender interests, (78) for if the workplace is unionized she risks losing the legal protection her oppositional agency might otherwise receive under Title VII. (79) On the other hand, to resist unionization may further her race/gender interests, but perhaps at the expense of her class interests. (80) That these structures were not created for her is, thus, best evidenced by the fact that she neither exists for them except as a fragment of who she is, nor can she, through them, affirm her interests as an integrated whole. (81)
1. Section 9(a) of the NLRA, 29 U.S.C. s 159(a) provides in part:
"Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. . . ."
2. Section 7 provides that: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). 29 U.S.C. § 157.
3. Initially, I should note that Emporium Capwell was decided by the Court and has since been interpreted as a "separate bargaining case," that is, as a case in which a subgroup of employees attempted to circumvent the union and engage in separate collective bargaining with the employer. See e.g., David Abraham, Individual Autonomy, supra n. ***. The decision is problematic even at this initial level. First, the black workers vigorously argued, and the lower court agreed, that they were not attempting to bargain, but were instead "attempting only to present a grievance to their employer within the meaning of the first proviso to § 9(a).
That proviso states:
That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect. . . ."
The Court rejected this argument, holding that "the proviso was not intended to give individuals the right to present grievances to the employer, but rather to afford the employer the discretion to entertain such grievances without risking liability for dealing directly with employees in derogation of the employer's duty to bargain only with exclusive bargaining representative." This response, however, only assumes the issue in dispute, namely whether the employer, in meeting with the dissidents, would have been bargaining in violation of the union's status as exclusive representative or simply adjusting a group grievance pursuant to an existing anti-discrimination clause in the collective bargaining agreement. See generally, Note, Dissident Activity and the Exclusivity Principle Under the National Labor Relations Act, 55 Brooklyn L. Rev. 721 (1989) (Section 7 protection of concerted actions by rank and file union members traditionally turned on whether the workers' agenda was consistent with the union's purposes, policies or procedures, not on whether it was authorized by the Union; nevertheless the Board's interpretation has been less than consistent).
Moreover, since concerted action opposing race discrimination had previously been protected by Section 7, see e.g Tanner Motor Livery, Ltd, 148 NLRB 1402, 1403-4, aff'd after remand 166 NLRB 551, enf'd. 419 F.2d 216 (CA 9), Emporium Capwell is a "separate bargaining" case only if all it means is that protesting workers must refrain from demanding to meet with the employer. Under the Court's reasoning, however, the case cannot reasonably be construed so narrowly. See infra n. *** and accompanying text. Thus, Emporium Capwell is best read as a drastic contraction of the circumstances under which collective self-help by racial subgroups will have Section 7 protection. Nevertheless, I treat it as a "separate bargaining" case.
4. Section 8(a)(1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. s 158(a)(1) that:
"It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
5. The Emporium, 192 NLRB No. 19, at 180 (Trial Examiner's Decision).
6. At least one of these meetings was attended by representatives of the Fair Employment Practices Committee (FEPC) and the Equal Employment Opportunity Commission (EEOC). Id.
8. The Emporium, 192 NLRB No. 19, at 181 (Trial Examiner's Decision). Among the demands, footnote 21, "We demand selling, personnel of the following Racial groups to be infiltrated into the following high commission selling areas. Black, Mexicans, Chinese, Filipinos, etc." 420 U.S. at 68.
9. Russell Young was eventually promoted before any picketing began, and one other black individual reportedly benefitted from the Union's grievance proceedings. Id. at 181.
10. The pamphlets distributed by the dissenters read as follows: BEWARE EMPORIUM SHOPPERS BOYCOTT IS ON !!!
For years at the Emporium black, brown, yellow and red people, have worked at the lowest levels. Time and again we have seen intelligent hard working brothers and sisters denied promotions and basic respect.
The Emporium is a 20th century colonial plantation. The brothers and sisters are being treated the same way as our brothers are being treated in the slave mines of South Africa.
Whenever the racist pig at the Emporium injures or harms a black sister or brother, they injure and insult all black people. The Emporium must pay for these insults. Therefore, we encourage all of our people to take their money out of this racist store, until black people have full employment and are promoted justly through-out the Emporium.
We welcome the support of our brothers and sisters from the churches, unions, sororities, fraternities, social clubs, Afro-American Institute, Black Panther Party, W.A.C.O. and the Poor People's Institute. Emporium Capwell at 180.
11. "These statements are untrue and are intended o and will, if continued, injure the reputation of the Emporium. There are ample legal remedies to correct any discrimination you may claim to exist. Therefore, we view your activities as a deliberate and unjustified attempt to injure your employer. This is to inform you that you may be discharged if you repeat any of the above acts or make any similar public statement." The Emporium, 192 NLRB No. 19, at 182 (Trial Examiner's Decision).
12. The Trial Examiner's recitation of the facts does not indicate whether the two claimants were the only employees picketing on November 9th; however, they were, in all prior incidents, accompanied by at least two other employees.
14. 420 U.S. at 58, partially quoting Trial Examiner's Decision, 192 NLRB at 186.
15. Western Addition, 485 F.2d at 928. According to the court,"the exclusivity principle . . . was premised on the concept of majority rule. This concept -- that what was best for the union was best for the individual -- recognized that collective bargaining could not proceed where various factions within the bargaining unit were free to present conflicting or unequal demands to the employer. Subjection of the will of the individual to the will of the majority was the method Congress chose to preserve industrial peace and stability over matters in which individuals would most likely disagree. . . ."
16. Western Addition Community Organization v. N.L.R.B., 485 F.2d 917, 927 (1973).
17. The court continues: "The law does not give the union an option to tolerate some racial discrimination, but declares that all racial discrimination in employment is illegal. . . Therefore, the underlying premise of section 9(a) that the will of the individual must be subjected to the will of the majority does not authorize the approval of racially discriminatory employment practices, because the purposes of the minority group and the union in desiring to eradicate the racial discrimination in employment cannot be at odds. . ." Id. at 928-9.
18. See supra n. *** and accompanying text.
19. "Where as here, both the subject matter of the concerted activity and the right to engage in such activity are safeguarded by legislation, we feel such concerted action cannot be treated identically with other concerted activity which is not so safeguarded for the purpose of determining whether it so violated section 9(a) as to lose Section 7 protection." Western Addition, 485 F.2d at 927.
20. According the court, the employees' protest activities were protected under Section 704(a) of Title VII; 42 U.S.C. s 2000e - 3(a)(1970), which provides in pertinent part:
(a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment .. . or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. See infra Mozee
21. Western Addition, 485 F.2d at 931 quoting 192 NLRB at 11 (Member Jenkins dissenting).
22. "The Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently, the entire scope of Congressional purpose calls for the careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task." Id. at 927, quoting Southern Steamship Co. v. NLRB, 316 U.S. 31, 47, 62 S.Ct. 886, 894, 86 L.Ed. 1246 (1942). See also Shultz v. Local 1291, International Longshoremen's Ass'n, 338 F. Supp. 1204, 1208 (1972) (a court may not consider an employment practice "reasonable" for purposes of the Labor-Management Reporting and Disclosure Act if the practice would be unlawful under the Civil Rights Act of 1964) discussed more fully infra n. *** and accompanying text.
23. 420 U.S. 50, 59 (emphasis added).
24. Western Addition, 485 F.2d at 931.
25. "In such a case, we do not think the method or means chosen by the union should preclude a minority group who has reasonable grounds for believing that the union is not proceeding against all discrimination from attempting to assert its claim of racial discrimination in a manner which it considers would be more successful. Otherwise, as Member Jenkins observed in dissent, a union "would [be] permit[ted] . . . to control the scope, direction, pace and degree of racial discrimination." Id. at 931.
26. "Plainly, national labor policy embodies the principles of nondiscrimination as a matter of highest priority, Alexander v. Gardener-Denver Co., 415 U.S. 36, 47 (1974), and it is commonplace that we must construe the NLRA in light of the broad national labor policy of which it is a part. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-458 (1957)." Emporium Capwell, 420 U.S. at 66.
27. 27 "There are indeed significant differences between proceedings intitiated under Title VII and an unfair labor practice proceeding. Congress chose to encourage voluntary compliance with Title VII by emphasizing conciliatory procedures before federal coercive powers could be invoked. Even then it did not provide the EEOC with the power of direct enforcement, but made the federal courts available to the agency or individual to secure compliance with Title VII . . . By contrast, once the General Counsel of the NLRB decides to issue a complaint, vindication of the charging party's statutory rights becomes a public function discharged at public expense, and a favorable decision by the Board brings forth an administrative order. As a result of these and other differences, we are told that relief is typically available to the party filing a charge with the NLRB in a significantly shorter time, and with less risk, than obtains for one filing a charge with the EEOC." Emporium Capwell, 420 U.S. 72-3.
28. "The [D.C. Circuit's] argument confuses the employees' substantive right to be free of racial discrimination with the procedures available under the NLRA for securing these rights. Whether they are thought to depend upon Title VII or have an independent source in the NLRA, they cannot be pursued at the expense of the orderly collective-bargaining process contemplated by the NLRA." Emporium Capwell, 420 U.S. at 69.
29. "Even assuming that § 704(a) protects employees' picketing and instituting a consumer boycott of their employer, the same conduct is not necessarily entitled to affirmative protection from the NLRA." 420 U.S. at 71. See infra cites to law review articles supporting enforcement fragmentation on grounds of efficiency, EEOC expertise, Meltzer, impact on unions to benefit of employers, Harper & Lupu; but see Hill and Gould.
30. "Under the scheme of [the NLRA], conduct which is not protected concerted activity may lawfully form the basis for the participants' discharge. That does not mean that the discharge is immune from attack on other statutory grounds in an appropriate case. If the discharges in these cases are violative of § 704(a) of Title VII, the remedial provisions of that Title provide the means by which [the discharged employees] may recover their jobs with backpay. Emporium Capwell, 420 U.S. at 71-2.
31. The Court's opinion suggests that its holding would be the same even if the inadequacy of Title VII were established. See footnote 16, at 50 "Our analysis of respondent's argument in favor of the exception [to the exclusive representation principle] makes it unnecessary either to accept or reject its factual predicate, viz., that the procedures now established for the elimination of discrimination in employment are too cumbersome to be effective. We note, however, that the present record provides no support for the proposition."
32. "Whatever its factual merit, th[e argument that the NLRB's procedures are a better framework than the EEOC's for enforcing non-discrimination rights] is properly addressed to the Congress and not to this Court or the NLRB. In order to hold that employer conduct violates Section 8(a)(1) of the NLRA because it violates Section 704(a) of Title VII, we would have to override a host of consciously made decisions well within the exclusive competence of the Legislature. This obviously we cannot do." Emporium Capwell, 420 U.S. at 73.
33. The Court acknowledged that the legislative intent on this issue was hardly unequivocal, particularly in light of the fact that Congress affirmatively rejected an express proposal to make Title VII's remedial process exclusive and restrict employee access to other remedial alternatives. Thus the Court refused to foreclose the possibilty that "in some [undetermined] circumstances rights created by the NLRA and related laws affecting the employment relationship must be broadened to accommodate the policies of Title VII." Emporium Capwell, n. 26.
34. I am indebted to my colleague Patrick Gudridge for helping me conceptualize these two alternative models. See Patrick Gudridge, Arbitration and Statutory Prominence, unpublished manuscript.
35. Emporium Capwell, n. 25 "What is said above does not call into question either the capacity or the propriety of the Board's sensitivity to questions of discrimination. It pertains, rather, to the proper allocation of a particular function -- adjudication of claimed violations of Title VII -- that Congress has assigned elsewhere."
36. See generally, Herbert Hill, NLRA and Civil Rights Law, 11 Harv. C.R.-C.L. L. Rev. 334-359 (1976).
37. See infra n. ** and accompanying text for discussion of the way in which the relative priority of individual and collective rights is manipulated across distinct doctrinal domains to the systematic disadvantage of women of color as individuals and as a group.
38. See infra n. ** and accompanying text for discussion of the way in which the relationship between group membership and representational authority is likewise manipulated across distinct doctrinal domains with similar consequences for women of color.
39. Compare Williams v. New Orleans, supra n. *** (questioning whether this was an appropriate purpose for a labor union) with James Cone, BLACK THEOLOGY, BLACK POWER (discussing the decomposition of the ghetto for want of community creating institutions).
40. Emporium Capwell, 420 U.S. at 62.
41. Explain the determination of appropriate bargaining units by the Board. For critique refer infra to comparison between Handy Andy (mandatory inclusion of minorities) and Allegheny General Hospital (permissible exclusion of minorities) and its implications in light of the Union Integration cases.
42. Seep (rejecting DFR claim against union on grounds that union's refusal to support demands of female clerical workers justified by a judgement that it should protect interests of numerical majority, namely male workers), discussed infra
43. Emporium Capwell, 420 U.S. at 62.
44. "The practice and philosophy of collective bargaining looks with suspicion on such individual advantages." J.I. Case Co, 321 U.S. at ***.
45. See e.g. Abraham, Individual Autonomy ****
46. Ultimately this version of collectivization is based on an adversarial model of industrial relations which has its intellectual orgins in the Marxist idea of class struggle; capitalist exploitation, etc. . . . Abraham; Harper and Lupu
47. Although the Court construes the workers' activities as an effort to bargain separately, it is clear that they were discharged, not because they insisted on meeting with the Emporium's President, nor even because they refused to participate in the joint grievance procedures. The workers' were discharged on account of their press releases, their picketing activities and their efforts to organize a community boycott. See supra n. ***.
48. "Against this background of long and consistent adherence to the principle of exclusive representation tempered by safeguards for the protection of minority interests, respondent urges this Court to fashion a limited exception to that principle: employees who seek to bargain separately with their employer as to the elimination of racially discriminatory employment practices peculiarly affecting them, should be free from the constraints of the exclusivity principle of §9(a)." 420 U.S. at 65 (emphasis added).
49. See e.g. n. ** and accompanying text discussing Bailey v. Ryan Stevedoring (black workers opposed class action claiming that the action was motivated by malcontents seeking their individual aggrandisement at the expense of black workers' collective interests).
50. Thus, if race is an impermissible basis for self-determination and collective action, then as racial minorities we are bound to be constituted as demobilized and disaggregated individuals in organizations dominated by white majorities (whether male or female). Likewise, if gender is an inappropriate category for collective action and self-determination, then given the current demographics of the workplace, we can again expect to find ourselves constituted as minorities without effective institutional power in organizations dominated by male majorities (whether white or nonwhite). Given these institutional arrangements, our only recourse is the substantive limits imposed upon majoritarian decisions by the duty of fair representation or Title VII, or, alternatively, to engaged in unlawful mobilization and suffer the consequences.
51. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stanford L. Rev. 581 (1990)
53. Initially, it is important to emphasize that the experience of "multiple consciousness" is first a fundamentally a distinctly human experience, whether viewed as a psychological phenomenon, see generally, THE MULTIPLE SELF (J. Elster, ed. 1985), as a social construct, see Steve Schnably, Critique of Radin (discussing the fragmented self as product of the commodification of the self in capitalist consumer culture) or as a spiritual state of being, see Kavanaugh, (still) FOLLOWING CHRIST IN A CONSUMER SOCIETY (1991) (describing the individual's acknowledgement of the fragmentation and insecurity of self as the first step toward an authentic response to God's grace). In these respects, all individuals experience themselves as fragmented and evolving to the extent they experience themselves at all. Nevertheless, the fact is that being a woman of color in America situates my individuality in a concrete political and economic structure, which renders my self-experience different from the self-experience of others who are not so situated. The problem is that when I identify my situation, my self-experience is considered less universal and more particular, as though my vulnerability to sickness, self-deception and my ultimate mortality are more essential to my human consciousness than my vulnerability to male violence and racial prejudice. This is absurd. More importantly, it reflects nothing more than the disproportionate social and discursive power of those who do not experience male violence and racial prejudice as part of their human condition. Thus I embrace my experience of multiple consciousness as a woman of color, and it is as a woman of color that I explore and seek to transform its social and political dimensions.
54. Thus, while Professor Harris uses the woman of color's experience of multiple consciousness to challenge the "gender essentialism" of white feminist theory -- "the notion that a unitary, "essential" women's experience can be isolated and discribed independently of race, class, sexual orientation, and other realities of experience," Harris, Race and Essentialism, supra n. *** at 585, my point is that the institutional arrangements we inhabit are as much the product of "essentialism" as the theories through and in response to which we attempt to make sense of our worlds.
55. Gabel, Reification in Legal Reasoning, 3 Research L. & Soc. 25 (1980); Mahoney, Race and Geography, supra n. at *** Professor Mahoney's use of the concept of a "built environment," Id. at 1261, to explain the economic subordination of urban blacks provides a compelling and concrete example. As she explains, "Once we have constructed a housing project in one place and zoned or given tax incentives to create a factory in another, distant place -- once we have permitted housing for low-income families to be isolated from the capacity to earn a living wage -- we have built a physical as well as social structure in which the physical features of subordination and poverty will affect our capacity to modify that social structure." Id. at 1262. Thus, even as the structures of our society are the product of human intention and design, the character of these structures (that is who is oppressed and who is privileged by them) reflects and actualizes the "essentialist" perspectives and interests of those who control the political processes through which they are designed.
56. King, Multiple Consciousness: The Context of a Black Feminist Ideology, 1988 Signs 42.
57. Thus, for example, a black woman joins the black liberation movement at the expense of her interests as a woman. King, supra at 63; WOMEN AND REVOLUTION. The women's liberation movement neglects her interests as a black. Id.; bell hooks, FEMINIST THEORY; Angela Harris, Race and Essentialism, supra n ***. And the labor movement's struggle against exploitation in the workplace has often been affirmatively hostile to her interests as both. See generally W. Gould, BLACK WORKERS IN WHITE UNIONS (1977); H. Hill, BLACK LABOR AND THE AMERICAN LEGAL SYSTEM (1985); D. Balser, SISTERHOOD & SOLIDARITY: Feminism and Labor in Modern Times (1987); Hartmann, Capitalism, Patriarchy and Job Segregation by Sex, in CAPITALIST PATRIARCY AND THE CASE FOR SOCIALIST FEMINISM (Z. Eisenstein ed. 1979).
58. See Evans v. Sheraton Park Hotel, 503 F.2d 177 (1974) (citing ILA Baltimore as precedent for merging sex segregated union locals).
59. See supra n. *** and accompanying text.
60. See infra note *** indicating the black workers' demands on behalf not only of all black, but all Mexican, Chinese, Filipinos, etc. workers.
61. Emporium Capwell, 420 U.S. at 75. Justice Douglas continued: "The Board has held that the employees were unprotected because they sought to confront the employer outside the grievance process, which was under Union control. The Court upholds the Board, on the view that this result is commanded by the principle of "exclusive representation" embodied in Section 9 of the NLRA. But in the area of racial discrimination the Union is hardly in a position to demand exclusive control, for the employee's right to nondiscriminatory treatment does not depend upon Union demand but is based on the law." Id. Indeed, the Court's insistance on construing the black workers' concerted activity as separate bargaining is normatively loaded -- orienting their activity as the pursuit of self-interest (which the labor laws abhor) rather than solidarity and mutual interdependece (which they support and purportedly seek to promote).
62. For an account of how race and gender discrimination construct group interests, see infra, discussion of Goodman v. Lukens Steel. See generally infra PART III.
63. Move footnote on essentialism to here.
64. Emporium Capwell, 420 U.S. at 67.
65. Id. at 67-6 (emphasis added). Again, like the union integration cases, the assumption here is that the redistribution of power across racial groups will promote further racial fragmentation. See e.g. EEOC v. ILA, 511 F.2d at 279 ("[M]erger eliminates the possibility of internecine strife between the segregated unions either in the negotiation process or in other phases of union activity. For, where different unions have different interests we cannot be assured of amicable relations. I read another salutary effect of [compulsory mergers] to be the prevention of any such interunion carnage under black and white flags."). Nevertheless, the idea that racial harmony can be grounded on the institutional disempowerment of minority groups is simply wrong. Consider that racial fragmentation is a function of racial subordination, see infra, n. ** and accompanying texts (discussion of social construction of group interests) and that racial subordination is effected through the concentration of institutional and interpretative power in members of the dominant racial group. To redistribute power across racial groups is, thus, the first step towards ending the conditions of racial subordination, and ending racial subordination is the only legitimate way to stop human beings from "further dividing them[selves] along racial or other lines." See also, supra n. 15? and accompanying text. I think that both those who claim there is no peace without justice and those who insist there is no justice without power are right and that, consequently, Marshall is simply wrong here.
68. Of course, a major purpose of this Article is to demonstrate why we cannot ignore the way minority agency is suppressed and submerged as a result of these decisions. If, as I argue, there are fundamental limits to what courts are willing or able to remedy through the articulation of Title VII, that is, limits on the extent to which courts are willing to embrace doctrinal interpretations that fundamentally alter the status quo of race and gender subordination, then forcing individuals to assert their "fundamental rights" through the courts (as opposed to redesigning the structures of institutional power and representational authority so that they themselves may protect their interests) is -- at least, if not more -- debilitating than withholding these rights in the first place.
69. Emporium Capwell, 420 U.S. at 70 ("When union and employer are not responsive to their legal obligations, the bargain they have struck must yield pro tanto to the law, whether by means of conciliation through the offices of the EEOC, or by means of federal court enforcement at the instance of either that agency or the party claiming to be aggrieved.").
70. 476 F.Supp. 495, 501 (1978).
71. See infra n. *** and accompanying text (Powell in Goodman).
72. King v. Illinois, 476 F.Supp. 495, 501 (1978). The Supreme Court has not returned to the examine whether Section 704(a) protects "opposition conduct" that would constitute unprotected concerted activity under the NLRA since the issue was left undecided in Emporium Capwell, 420 U.S. at 71, n. 25. Moreover, there are very few lower court cases on point, to wit: Id.; Mosley v. General Motors Corp, 497 F.Supp. 583 (1980) (oppositional conduct not protected); Mozee v. Jeffboat, 746 F.2d 365, 374 (1984) (case remanded but issue not decided). For the text of Section 704(a), see supra n. *** For a helpful overview of how Section 704(a) has been applied generally, see Edward Walterscheid, A Question of Retaliation: Opposition Conduct as Protected Expression under Title VII, 29 B.C.L. Rev. 391 (1988).
75. "If an employer cannot obtain a binding no-strike clause, then his incentive to bargain is decreased.. [so what, the employer has a legal obligation to bargain regardless of incentives] He will be less willing to make concessions during the bargining process. The end result is that the collective bargaining process would be weakened in its ability to resolve disputes." Id at 501.
76. For an early commentator predicting the perverse impact of Emporium Capwell see, Note, Title VII and the NLRA: Protection of Extra-Union Opposition to Employment Discrimination, 72 Mich. L. Rev. 313, 325 (1973) (Protection under Section 704(a) for employees in unionized workplaces may be restricted after The Emporium).
77. With important exceptions, see Allegheny General Hospital discussed infra n. *** at ***.
78. See e.g. Rhonda Williams and Peggie Smith, What "Else" Do Unions Do? Race and Gender in Local 35, 18 Review of Black Political Economy, 59 (1990) (examining job segregation by gender and race; white male workers dominate highest levels of wage hierarchy within predominantly female union; black women earn lowest wages because they are excluded from high paying jobs and their work is devalued by the Local's job grading and wage setting systems).
79. "The limitations on his alternatives put him at a real disadvantage when compared to a nonunion employee. To allow such different treatment merely because the majority of the employee's unit chose to unionize . . . seriously and incorrectly restricts his protest against discriminatory practices." Note, 72 Mich. L.Rev. at 325.
80. See e.g. Union Labor Report Weekly Newsletter, v. 46, no. 12, pp. 100-2, Apr. 2, 1992. According to the Bureau of Labor Statistics, union members received higher pay than non-union workers both in 1990 (where median weekly pay was $509 and $390, respectively) and in 1991 (where median weekly pay was $526, $404, respectively). Unionized men received median weekly earnings of $568 compared to unionized women, who received $467. Non-union men and women received median weekly pay of $473 and $348, respectively. Black union members received $461 median weekly pay [no breakdown by sex].
81. By contrast, for white male workers who are privileged both through their race and gender, support for unionization may be experienced as a relatively unequivocal political act.