In this section, I want to situate women of color in the network of legal rules through which the parameters of the bargaining unit, the conditions of inclusion and exclusion, are established. In these cases, both the duty of fair representation and the fragmentation of Title VII and the NLRA play significant roles in rationalizing decisions that create an institutional arrangement in which women of color find themselves without effective means of determining either their inclusion or their exclusion from a bargaining unit.
1. The Duty of Fair Representation in Board Certifications of Discriminatory Unions (Compulsory Inclusion).
In Handy Andy, Inc. (1) the duty of fair representation was invoked to rationalize the NLRB's refusal to consider charges of discrimination against a union seeking certification as the exclusive representative of a bargaining unit composed, in part, of members of racial groups against which the union had discriminated in the past. (2) As in Emporium Capwell and the union integration cases, the substantive content of the duty of fair representation was not directly considered. Instead, the question was whether the Board was constitutionally required to hold pre-certification hearings on allegations of race discrimination. (3) The issue was framed around the question whether Board certification of a racially discriminatory union constituted sufficient state involvement in private discrimination to render the certification a constitutional violation, as the Board had previously concluded in Bekins Moving & Storage Co. (4) In Handy Andy, the Board reversed its Bekins decision, holding that pre-certification hearings were not required either by the Constitution or by the NLRA. Indeed, according to the Board, such hearings would be "destructive of the policies embodied in Section 9(c) of the Act" and exceeded the authority of the Board. (5)
The Bekins decision was based on the idea that the Board could not constitutionally bestow its certification upon a union which engages in race based discrimination. "Were the Board, as a Federal agency, to confer the benefits of certification on a labor organization which practices unlawful discrimination, `the power of the Federal Government would surely appear to be sanctioning, and indeed furthering, the continued practice of such discrimination, thereby running afoul of the due process clause of the fifth amendment.'" (6) By certifying a union, the Board establishes that union as the exclusive representative of all employees in the bargaining unit. As a consequence, minority employees who may have voted against the union are prohibited from seeking separate representation; the employer is required to bargain with the union; the union's status as exclusive bargaining representative cannot be challenged for a year; and there is a presumption that its status as exclusive bargaining representative continues after a year. (7) To certify a union that discriminates against minorities is, thus, to imprison those minorities within an institutional arrangement in which the union draws its power and authority from the state. "Certification is thus an integral part of the representation function in which the union practices discrimination and is patently direct participation and assistance by a Government agency, contrary to constitutional strictures, in the union's discriminatory representation." (8)
Nevertheless, in Handy Andy, the Board concluded that claims that a union discriminates are best considered in the context of an unfair labor practice proceeding, rather than in a certification proceeding. (9)
To support this conclusion, the Board must first overcome the constitutional objections accepted in Bekins. The important point is to understand is how the Board's reasoning about the relationship between Title VII and the NLRA and the existence of the duty of fair representation operates in the Board's constitutional analysis.
According to the Board, "while use of the Board processes and the Board's certification may have helped a union gain the powers of bargaining representative established by the Act," (10) certification should not be construed as "state action" for purposes of the Fifth Amendment. By certifying the union, the Board may affirmatively empower the union, but it does not thereby authorize the union to discriminate. (11) On the contrary, "the duty of fair representation in its various forms specifically prohibits a union from practicing unlawful discrimination under the authority of the Act." (12) Moreover, by enacting Title VII, "Congress has also taken steps to eliminate such discrimination based on race, etc. . . . Title VII, as implemented by the EEOC, performs the very function -- using the same test for discrimination, which the Eight Circuit . . .. would require of the Board." (13) Thus, the Board concluded that to require the NLRB to hold pre-certification hearings on charges of discrimination would not be to require "the Government merely to meet the constitutional requirements, but [rather] to meet them in a particular way which the court [or the Bekins majority] preferred to the methods Congress has chosen." (14)
The Board's constitutional analysis in Handy Andy is importantly grounded on its interpretation of the relationship between Title VII and the NLRA. The Board's interpretation is, however, different from the relationship advocated by the black workers in Emporium Capwell and, indeed, different even from the relationship established by the Supreme Court's decision. Rather than expanding the Board's responsibility to interpret the NLRA in a manner consistent with furthering the anti-discrimination policies of Title VII, rather even than requiring increased "sensitivity" to the impact of the Board's interpretation on those policies, the Congressional expression of an affirmative commitment to eliminating race discrimination in employment through the enactment of Title VII is construed, in Handy Andy, as a basis for contracting the Board's obligation to combat race discrimination through its interpretation of the NLRA.
A look at the argument developed by Bernard Meltzer will help clarify the Board's approach as it was his argmuments that the Board adopted in Handy Andy. (15) According to Professor Meltzer, "[t]he Board's failure to act against discrimination in a bargaining agent's membership practices is not the failure of the federal government; for in Title VII Congress has unequivocally proscribed those practices and has apparently discharged any constitutional obligation to provide a remedy. Consequently, Title VII transformed the problem of "state action" and made the Board's earlier analysis in Hughes Tool obsolete." (16)
Thus, while the Supreme Court's decision in Emporium Capwell might suggest that Title VII is simply irrelevant to the Board's interpretation of the NLRA, in the Board's analysis, Title VII and the procedures it established for challenging discrimination affirmatively eliminated any constitutional responsibility the Board may have had to consider the problem of race discrimination in its interpretation of the the processes and institutional arrangements it regulates under the NLRA. By enacting Title VII, the state established procedures for challenging a union's discrimination and is, therefore, not implicated in the union's discrimination. Since nothing in the Constitution prevents "Congress from eliminating duplicative remedies by providing that a single agency should have exclusive jurisdiction over claims of racial discrimination by employers and unions," (17) the question of Board certification becomes an issue simply of the Board fulfilling its function to determine and promote the policies and purposes of the NLRA, that is, to ensure that the majority's will and the processes of collective bargaining are not frustrated by the strategic presentation of collateral claims. (18)
The duty of fair representation plays a similar, though slightly different role in the Board's analysis. Like the existence of alternative remedial procedures under Title VII, the existence of a potential post-certification action for breach of the duty of fair representation provides the Board's basis for assuring us that a pre-certification hearing is neither constitutionally required, nor, for that matter, good policy. According to the Board,
"even a union which practices some unlawful discrimination may be the best one available in the opinion of the workers in the unit, who are given the right to decide for themselves by the Act. Even if minority members of the unit are convinced that the union will fairly represent them, and vote for the union under the Bekins approach, a bargaining order may still have to be denied. (19) Yet, the minority workers might not be helped by keeping the union out, since they will then be at the mercy of their employer who has no duty of fair representation to fulfill who may act to the detriment of all workers and who may also discriminate against minorities. In short, a union that has discriminated actively in the past and still has a racial imbalance may be preferable for minority workers to no union at all." (20)
The Board's use of the duty of fair representation is of a piece with the use of the duty of fair representation in the integration cases and Emporium Capwell. (21) The fact that women of color may become a submerged minority in an institutional structure dominated by a white/male majority that discriminates against them is not a problem because the duty of fair representation provides alternative avenues of recourse. Only the union has a duty of fair representation -- a duty which requires the union to refrain from and affirmatively combat discrimination; ergo, women of color are better off submerged in a union that discriminates against them, than in no union or alternatively, as determined in the integration cases, better off than in a separate union.
The problem, as Member Jenkins noted, is that the prosecution of a duty of fair representation action is not the worker's prerogative, but depends, instead, on whether the Board's General Counsel decides to file a complaint. (22) Even more importantly, the Board's approach turns significantly on the assumption that the actions prohibited and the obligations imposed on unions by the duty of fair representation will adequately protect women of color from the consequences of allowing the concentration of institutional power in a representative that discriminates against them. The more discretion unions are allowed under the substantive standards of the duty of fair representation, the more problematic Handy Andy (and all these cases) become. (23)
2. The Duty of Fair Representation in Appropriate Bargaining Unit Determinations (Permissible Exclusion)
The duty of fair representation appears again in Allegheny General Hospital, (24) a case in which a hospital employer invoked the policies of Title VII to resist the certification of a segment of its workforce as an appropriate bargaining unit for purposes of union representation and collective bargaining.
In 1971, the International Union of Operating Engineers petitioned the Pennsylvania Labor Relations Board [PLRB] for certification of the employer's maintenance department workers as an appropriate bargaining unit for purposes of collective bargaining. The hospital objected to the proposed unit on the grounds that it would perpetuate race and gender based segmentation among the hospital workers because, as defined by the union, the proposed unit was made up entirely of job classifications occupied by white male workers and excluded job classifications in the housekeeping departments, in which racial minorities were employed and clerical jobs, in which women predominated. According to the hospital, the only appropriate unit included both the maintenance and the housekeeping departments.
The PLRB rejected the hospital's arguments and certified the maintenance department as an appropriate barganining unit. Nevertheless, the hospital refused to bargain with the union, and in response, the union filed an unfair labor practice charge with the Board pursuant to Section 8(a)(5) and (1) of the NLRA. (25) At the unfair labor practice hearing, the employer again alleged that the unit certified by the PLRB was inappropriate and offered to prove that the certified unit conflicted with Title VII and other state laws requiring equal opportunity in employment as well as with the 14th and 5th amendments to the Constitution.
According to the hospital's proposed offer of proof, the disproportionate number of minority and female employees holding jobs throughout the hospital as compared with those employed in the 26 bargaining unit classifications was an inherited consequence of pre-Title VII discrimination against these groups. Since 1971, the hospital had acquired contracts which required it to implement affirmative action programs to achieve equal opportunities for all its employees and had instituted a policy of posting jobs, calculating seniority and adjusting grievances on an institution-wide basis in order to facilitate the inter-departmental mobility of its minority and female workers.
The hospital further offered to prove that the Union's policies were inconsistent with the upward mobility of minority and female employees and that the union's equal opportunity profile showed that it opposed such mobility. Moreover, since 1971, the hospital's efforts to change the race and gender composition of the job classifications in the certified bargaining unit had been opposed by union leaders and the advances that had been made in minority representation in 26 bargaining unit classifications would not have been possible if hospital had been required to bargain with the Union. (26)
The ALJ rejected the hospital's offer of proof; nevertheless, he did find that if the unit certified by the PLRB were before the Board on a representation petition, the Board would find the unit inappropriate. He noted that his decision was governed by the principles of comity afforded to unit determinations made by state agencies, but concluded that comity should not be granted because the unit certified by the PLRB conflicted with the unit standards devised by the Board in the health care industry. (27) Accordingly, he concluded that the certified unit was inappropriate and dismissed the union's unfair labor practice complaint against the hospital, holding, in the alternative, that if the Board disagreed with his findings on those issues, then the hospital should be afforded an opportunity to make a record on its offers of proof, since the proofs offered raised issues of constitutional dimension under the Board's decision in Bekins. (28)
The Board reversed. While state proceedings must meet requirements of a four factor test to warrant deference under the principles of comity, (29) the state agency's determinations need not follow Board precedent. Thus, according to the Board, the ALJ could not refuse comity to the certification decision on the ground that the unit found appropriate by the PLRB was inconsistent with prior Board decisions.
The Board went further, however, taking the position that even if comity were unwarranted, "a de novo hearing before the Board would [not] lead to a unit determination different from that reached by the PLRB." (30) According to the Board, the PLRB had considered the right factors in concluding that the proposed unit was appropriate. Focusing on the "commonality of functions and skills of the maintenance department employees," the PLRB had noted that a majority of the maintenance department employees were skilled craftsmen who performed repair and maintenance work or operated complex machinery; other non-craft classifications included in the bargaining unit required either the performance of maintenance and repair work or the operation of equipment; still others who, like the wall washers and storeroom attendants, did neither maintenance work nor operated equipment, were, nevertheless, employed in tasks that "were to a significant extent integrated with those of the craftsmen and other maintenance employees." (31)
The excluded classifications in the housekeeping department, on the other hand, were low-skill cleaning jobs. The departments were also appropriately separated because the workers in these deparments had no significant interactions and worked under different terms and conditions: different pay scales, different hours, separate supervision, and separate locker room and shower facilities.
For our purposes, the most significant aspects of the Board's decision in Allegheny General Hospital are the way it disposed of the hospital's claim that bargaining with the PLRB-certified unit would result in Title VII violations and its treatment of the duty of fair representation. The hospital had argued that "acceptance of the PLRB-certified unit [would] ensure discrimination because the boundaries of that unit in and of themselves [would] be the principal instrument for discrimination." (32) A union's duty of fair representation runs only to workers in an appropriate bargaining unit represented by the union. Because women and racial minorities were excluded by the Union's decision to restrict its proposed unit to job classifications in the maintenance department, the Union's bargaining position would necessarily focus exclusively on furthering the interests of the predominantly white male segment of the workforce at the expense of women and minorities. Accordingly, the hospital argued that the Board's unit determinations should take the race and gender composition of the proposed unit into account and that proposals to obtain certification for units which exclude job classifications occupied predominantly by women and minorities should be found inappropriate.
The Board rejected this argument. First, the Board concluded that unit determinations based on the traditional factors used in such determinations were reasonable and, apparently for that reason, consistent with the requirements of the 14th Amendment and Title VII. These traditional factors make the determination of appropriate bargaining units turn on a finding that workers in the proposed unit shared "a community of interest," rather than the sex or race of the employees. (33)
According to the Board:
"Without a community of interest, no basis exists to bargain collectively for wages, hours and other terms and conditions of employment. Units balanced in terms of sex or minority composition do not necessarily share the community of interest in wages, hours, and working conditions needed for successful bargaining. (34)
The hospital's argument was thus construed by the Board as a request that the Board "abandon the traditional criteria used in making unit determinations and replace them solely and exclusively with the criteria of racial and sexual balance." (35) The Board claimed that to do so would be to ignore not only the Board's statutory obligations but also the entire history of labor relations in the area of employee choice and unit determination. (36) Importantly, however, the Board completely ignored the fact that the hospital's offer of proof was, in part, to show that a number of job classifications not included in the proposed unit had job contents so similar to the content of jobs within the proposed bargaining unit as to require equal pay where those jobs were held by persons of different sexes. (37)
The Board also rejected the hospital's argument that the choice to organize only those classifications occupied by white male employees evidenced discrimination by the Union against women and minorities, which established grounds for believing that the Union would promote white male interests at the expense of minorities and women in future bargaining. According to the Board, this was pure speculation. (38) The hospital could not "blame the Union for the racial, sexual, and ethnic composition of the engineering and maintenance department" since it admitted that the composition of that unit resulted from its own past discrimination against those groups of workers. (39)
Moreover, since the union did not control hiring decisions at the hospital, "the employer has the means to remedy any grievance which might accrue by reason of its own hiring practices which have placed minority and female employees primarily in housekeeping." (40) Consequently, the fact that the proposed bargaining unit would operate, in effect, to restrict the Union's bargaining obligations to white male workers (since these workers constituted its only constituency) would not "foreclose the advancement of minorities [because such a] . . . certification [would] not preclude the Employer from protecting the rights of minorities. If [it] is concerned . . . [it] may protect their rights by insisting on plant-wide seniority . . . . " (41)
The Board's treatment of the hospital's duty of fair representation argument is positively astounding. Both the integration cases and the Board's decision in Handy Andy invoked the union's duty of fair representation to justify decisions that permit the compulsory submergence of minority workers in majority dominated unions. In Allegheny General Hospital, however, the fact that, under the proposed bargaining unit, the union would have no duty of fair representation was considered completely irrelevant. Minorities are told to seek recourse against discrimination not in the union or its duty of fair representation, but rather in the employer's willingness to bargain in their behalf against the union, the same employer which the Board claims is responsible for the race and gender segmentation of the workplace.
Moreover, while, arguably, the Board's decision is simply a further institutionalization of Emporium Capwell's fragmentation of Title VII and the NLRA, the practical consequences and theoretical implications of the Board's treatment of Title VII are even more discouraging. Arguably, under the reasoning of the union integration cases, the proposed bargaining unit constitutes a blatant violation of Section 703(2). (42) The question is how the union's proposed bargaining unit would have fared if the challenge were brought under the substantive standards and through the procedural avenues established by Title VII. (43) The answer would, of course, depend on how the court negotiated the relationship between Title VII and the NLRA, and more specifically, whether the the segregation at issue in the union integration cases was distinguished from the segregation at issue in Allegheny General Hospital.
The Board concluded that the decision to seek certification only of job classifications in the maintainance department was not itself evidence of discrimination. The community of interests among the workers in those departments provided an independent and reasonable basis for the union's decision, so reasonable, indeed, that an inference of discriminatory motive would be "pure speculation." In ILA Baltimore, on the other hand, the court found that the "black and white gangs possess equal abilities and are capable of doing the same work. Gangs from both locals work for the same stevedores on the same ships and in the same hatches. Since there is no substantial difference in the locals except race, we conclude that the evidence fully substantiates the trial court's finding that the ILA chartered and maintains segregated locals in the Port of Baltimore."
It might, therefore, be argued that, in the union integration cases, the racially segregated locals violated Title VII because blacks and whites were doing the same work; nevertheless, the plain language of Title VII does not refer specifically to race-based classifications, but to any classification that would tend to adversely affect anyd individual's employment opportunities because of such individual's race. To the extent the race and gender segmentation of the hospital workforce is the work-product of prior discrimination against women and minorities, the union integration cases and Allegheny General Hospital can be reconciled only by importing a "formal race" vision of Title VII's anti-discrimination mandate. (44) While this approach might make the cases appear analytically consistent, it would also serve significantly to perpetuate race/gender stratification by establishing a legal structure in which unit determinations based on segmented occupational structures are upheld on the theory that these structures are not race/gender based, while separate representational structures affording minority workers the opportunity to assert effective institutional power are struck down because they are race/gender based. From the perspective of the women of color who must inhabit the workplaces constructed through this legal house of mirrors, Title VII is worse than an empty formality -- however, you look at it, these decisions operate cumulatively and interactively to ensure, one way or another, the concentration of institutional power in a white/male majority.
In short, while Emporium Capwell and the union integration cases maintain a structure which suppresses the independent agency of women of color, Handy Andy and Allegheny General Hospital maintain an institutional arrangement which organizes the formation of collective legal identity in ways that offer us up to the white/male majority, whether as a submerged minority or as an excluded majority. Within this legal structure, women of color have no right to prevent the certification of a union as their exclusive representative even though it threatens to discriminate against them, nor any right to compel their inclusion as constituents in a bargaining unit that proposes to organize "around" the occupations into which they have been steered. Whether we are unionized or not is a decision made independent of and without any consideration of the impact that unionization will have on our employment opportunities. Thus, our collective identity is institutionally determined to a large extent by the strategic choices of the union that decides whether and what segments of a workplace it will organize. The union can choose to include us (when it organizes occupations into which we have only recently been admitted) or exclude us (when it refuses to organize occupations where we predominate). (45)
2. The Employer objected to certification of the Union as exclusive bargaining representative on the grounds that the Union had previously practiced discrimination against individuals on the basis of race, alienage and national origin by excluding such persons from membership and by a demonstrated failure to represent such persons fairly. Id. at 447. As evidence, the Employer noted that the Union had been found liable, on three different occassions, for negotiating collective bargaining agreements whose seniority provisions perpetuated the effects of past discrimination against minorities in the bargaining units represented by the Union. Id. at 448 n.3.
3. In fact, the issues were raised in the context of a petition for decertification. After an election by secret ballot was conducted amoung the employees of the appropriate bargaining unit, the Teamsters Union was elected by a vote of 108 to 66. The employer filed an objection to prevent Board certification of the elected Union as bargaining representative, an objection which the Regional Director recommended be overruled. Id. at 453.
5. According to the Board, "the [Bekins] majority members in effect arrogated to this Board the power to determine the constitutionality of mandatory language in the Act we administer, a power that the Supreme Court has indicated we do not have . . . Issuance of a certification to a union which has won a fairly conducted valid election is mandated by the Act . . . "Absent unfairness in the election itself, the section [9(c)(1)] commands the Board to issue a certification of representative to the winning labor organization. . ." Compare Jenkins dissent, 228 NLRB at 459 "This argument is completely devoid of merit. Certainly an agency is not holding a statute unconsititutional when it decides to adminster it in a constitutional manner. Direct commands in a statute are impliedly made subject to constitutional limitations."
6. Handy Andy, 228 NLRB at 448, quoting Bekins Moving & Storage, 211 NLRB at 139.
7. Id. at 458 (Member Jenkins dissenting).
8. Id. at 458-9 (Jenkins dissenting).
9. Compare "It is no answer that at some uncertain future date, after the union with Board assistance has carried out its discriminatory practices, unfair labor practice proceedings may be instituted which will bring these activities to a halt. THe fact of the matter is that until that day comes, if it ever does come, the Board has fostered invidious discrimination by the statutory agent." 228 NLRB at 458 (Jenkins dissenting).
10. The Board dismisses or rather ignores the implications of this fact by quickly adding in the very next clause of the same sentence that "the union has not been authorized to discriminate in the exercise of those powers."
11. Footnote response to Meltzer and Board's argument that powerful unions can operate without Board certification and the various forms of assistance certification makes available.
14. "A logical consequence of the Bekins constitutional determination is the conclusion that in their respective areas of authority the Federal agencies have overlapping responsibility for remedying any invidious discrimination by private parties." Id.
15. Id. at 451 n. 33 citing Bernard Meltzer, The National Labor Relations Act and Racial Discrimination: The More Remedies, the Better?, 42 U. Chi. L. Rev. 1, 9-10 (1974).
16. In Hughes Tool, the Board exercised its discretion under Section 9 to deny certification to a union that practiced race segregation and suggested that racial segregation violated Section 8.
18. Id. at 452-3. We conclude that the Bekins doctrine will significantly impair the national labor policy of facilitating collective bargaining, the enforcement of which is our primary function. First, the workers in the unit will be deined the "right guaranteed them by Section of the Act to bargain collectively through representatives of their own choosing," which could be the only effective bargaining representative available to them. . . Second, employers faced with the prospect of unionization will be provided be provided and have been provided under the Board's Bekins doctrine with an incentive to inject charges of union racial discrimination into Board certification and bargaining order proceedings as a delaying tactic in order to avoid collective bargaining altogether rather than to attack racial discrimination." But see Id. at 460 (Member Jenkins dissenting) (no evidence that employers have used Bekins merely to delay bargaining or that Board cannot distinguish compelling evidence of discrimination from frivolous allegations).
19. In Handy Andy, the Board makes much of "the fact" that the margin of victory indicated that minority votes were instrumental in the union's election. According to the Board, "the Employer concedes that, in a bargaining unit comprisesd of 211 employees, 58 are black and 114 are Spanish-surnamed Americans. Inasmuch as the Union won the decertification election by a vote of 108 to 66, simple arithmetic establishes that a substantial percentage of the minority employees voted in favor of continued representation by the Union. Id. at 453. Consider, however, that all 58 black workers might have voted against the union and the union would still have been elected. I am indebted to Mary Catherine Rachu, a second year law student, who pointed this out in the Equality in the Workplace seminar I taught this Fall.
20. Id. at 452-53 (emphasis added); Compare 228 NLRB at 460 (Jenkins dissenting): "[A]s to a discriminating union's being preferable to none at all, it might just as readily be claimed that segregated school systems should have been upheld because they were better than none at all and a state might refuse to support a desegregated system. The effect of my colleagues' position is that the Board can properly assist in the perpetuation of discriminatory representation because such representation might be preferred to no representation. No authority is cited for this bizarre suggestion."
21. See supra n. *** and accompanying text.
22. Handy Andy, 228 NLRB at 459 (Member Jenkins dissenting).
23. See infra n. *** and accompanying text for critique of substantive standards of DFR.
25. Jurisdiction passed from the PLRB to the NLRB by virtue of the health care amendments that became effective on August 25, 1974. The hospital moved that the PLRB vacate its order on the grounds that the amendments pre-empted the PLRB's jurisdiction. The PLRB returned the motion, noting that the Pennsylvania Supreme Court had closed all proceedings and that PLRB's jurisdiction had been pre-empted. Id. at 954.
26. According to the hospital, "Females consitute 70% and minorities 25% of the housekeeping department employees, while in the PLRB-certified unit there are only 6 blacks and 1 woman. According to [the hospital], at the time of the PLRB hearing in 1971 there were no women and two blacks (3%) in the unit, and that since then [the hospital] has added one woman and four blacks through its affirmative action program." Id. n. 13.
27. Id. at 955, citing Brookhaven Memorial Hosptial, 214 NLRB 1010 (1974) (comity not extended to unit of professionals and nonprofessionals where state agency did not afford professionals a separate vote) and focusing on NLRA exclusively, rather than on Title VII.
28. Overruled by Handy Andy on February 25, 1977, see supra n. ** and accompanying text.
29. Under these four factors, the state proceedings must (1) reflect the true desires of the affected employees, (2) exhibit no election irregularities (3) meet the basic requirements of due process and (4) the unit certified not be repugnant to the Act. Id. at 955.
31. Id. at 95. The Board did not specify in what way.
33. See generally, D. Jones, Self-Determination vs. Stability of Labor Relations, 58 Mich. L. Rev. 313 (1960); R. Hall, The Appropriate Bargaining Unit: Striking a Balance Between Stable Labor Relations and Employee Free Choice, 18 Western Res. L. Rev. 479 (1967); Leslie, Labor Bargaining Units, 70 Vir. L. Rev. 353 (1984); but see Schatzky, Majority Rule, Exclusive Representation, and the Interests of Individual Workers: Should Exclusivity Be Abolished? 123 U. Penn. L. Rev. 897 (1975).
36. Like Handy Andy, the Board in Allegheny General Hospital focused on the fact that union's discriminatory practices were being challenged by the employer. According to the Board, the "[u]nfortunate result is that unit employees remain unrepresented even though a majority of them chose the Union." However, the white male workers who remained unrepresented constituted "the majority" only if the proposed unit was appropriate. If, on the other hand, the appropriate unit should include the excluded departments, then the majority will is as yet undetermined.
37. Id. at 964. See generally Equal Pay Act.
38. Id. at 958. "[T]his contention is speculation which assumes that the Union would insist on not only a seniority system but one that is discriminatory."
40. Id. (quoting lower court opinion with emphasis added).
41. Id. at 957 (quoting the PLRB's decision with approval) (emphasis added by author).
42. Section 703(c)(2) provides: It shall be an unlawful employment practice for a labor organization -- to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment because of such individual's race, color, religion, sex, or national origin; (italics added).
43. I have been unable to find any cases challenging a proposed bargaining unit in an action brought under Title VII.
44. Neil Gotanda, A Critique of "Our Constitution is Color Blind", 44 Stan. L.Rev. 1, (1991) ("Race, as formal race, is seen as an attribute of individuality unrelated to social relations. . . Racism is irrational because race is seen as unconnected from social reality, a concept that describes nothing more than a person's physical appearance . . . The Supreme Court's use of formal-race unconnectedness is consistent with their view that the particular manifestations of racial subordination -- substandard housing, education, employment, and income for large portions of the Black community -- are better interpreted as isolated phenonomena than as aspects of the broader, more complex phenomenon called race. This disaggregated treatment veils the continuing oppression of institutional racism. It whittles racism down to the point where racism can be understood as an attitude problem amenable to formal race solutions. . . Even if one admits that large numbers of the unemployed and undereducated youth in the inner cities are Black, unconnectedness hinders the government's ability to use that correlation as a basis for attacking social ills.").
45. The history of American Labor Unions demonstrates that unions have routinely exercised both options. See supra n. *** [King, Hartmann, Gould, Hill, etc.]