I have argued that the fragmentation of Title VII and the NLRA provides an interpretative context in which the distinct interests and collective identity of women of color are systematically suppressed through inconsistent interpretations of the relationship between the policies and procedures of Title VII and the NLRA. Cumulatively, these interpretations constitute women of color as submerged minorities in an institutional structure which affords them no legal avenue of effective self-determination. In these cases, the DFR functions as a legitimating image -- as the conceptual cement that holds together a series of arrangements which deprive women of color of an institutionally recognized collective identity. To support the weight of this institutional structure of suppressed agency and compulsory submergence, the substantive standards of the DFR and Title VII would have to be rigorous. These substantive standards are in fact inadequate to counteract the structural disempowerment erected on the basis of the DFR. Thus, structural violence reaches closure in the interpretative illusion of a duty without substance.
The key case defining the substantive elements of the DFR is Vaca v. Sipes. (1) There the Court held that the DFR is breached "only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." This standard has operated as a major obstacle to making the DFR an effective vehicle for challenging majoritarian decisions that negatively affect the interests of racial minorities and women of any race. NAACP v. Detroit Police Officers Assocation (2) and Seep v. Commercial Motor Freight, Inc. (3) are illustrative.
In DPOA [II], the 6th Circuit reversed a lower court decision holding that the police officers' union had violated its DFR by failing to oppose the massive layoff of recently hired black police officers. Most of these officers were hired pursuant to an affirmative action program adopted as a result of a judicial determination that the City had discriminated against blacks. The lay-offs were made pursuant to the collective bargaining agreement between the City and the DPOA which required that the layoffs be based strictly on reverse seniority, the last hired being the first fired. Of the approximately 1,100 layed-off police officers, approximately 75% were black. Thus, the effect of the layoffs was to wipe out most of the affirmative action recruiting that had increased minority representation on the Detroit police force.
The lower court found a breach of the DFR based on the DPOA's complete failure to take any action to preserve the jobs of the black officers. On appeal, the Sixth Circuit reversed. (4) Citing Vaca, the court found no basis for holding the union liable for its failure to resist the layoffs of the black officers. The union's mere failure to bargain forcefully does not by itself constitute bad faith or discrimination. (5) In characterizing the lower court's opinion, the Sixth Circuit completely and inexplicably ignored the extent to which that holding was based explicitly on the lower court's findings that the all-white union leadership was affirmatively hostile towards the interests of the black police officers and intentionally and discriminatorily refused to act on their behalf in the same way they acted on behalf of white police officers when the latter were threatened with similar layoffs.
The question is whether the Vaca standards for breach of the DFR simply confer too much discretion on unions to discriminate and on courts to "wash their hands" in the name of preserving "the integrity and autonomy" of unions' internal decision-making processes. These standards have not only permitted all-white union leaderships, like the DPOA's, to discriminate with impunity against racial minorities of both genders, but have also insulated all-male union leaderships from liability to the female workers on whose behalf they have failed to act.
In Seep v. Commercial Motor Freight, Inc. (6) female clerical employees brought suit challenging a number of actions and inactions by their union under Title VII and the DFR. According to the court, the union's decision to permit workers in the other all-male units to cross the female workers' picket line was not discriminatory under Vaca because those units "represented the overwhelming majority of the local's membership at Commercial." (7) Thus, "it was the size of the unit rather than the gender of its members which influenced the union's decision. Such action was within the permissible scope of the union's discretion." (8)
The court's reasoning in Seep is particularly disturbing. Like DPOA II, it suggests that decisions benefiting white/male majorities at the expense of nonwhite/female subgroups are presumptively within the scope of the union's statutory duty towards the minority under both the NLRA and Title VII. (9) If the DFR is presumptively satisfied by decisions promoting the interests of the numerical majority and Title VII is presumptively satisified in the absence of a breach of the DFR, then it is difficult to see how this duty can really protect the interests of subordinated social groups, at least in cases like Seep where the subordinated group is a numerical minority.
The application of Vaca standards in DPOA and Seep raise serious doubts about the extent to which minority interests will be adequately protected in a system of exclusive representation by majority rule which denies subordinated subgroups the power of self-representation in exchange for the promise of a judicially enforced duty of fair representation. In these cases, the courts refused to impose upon unions an affirmative duty to combat discrimination; and yet, the union's affirmative duty to combat discrimination is the assumption that underlies a whole series of cases that systematically suppress minority agency. This assumption was invoked expressly in the union integration cases and implicitly in Emporium Capwell. If, as it now appears, the duty of fair representation does not require unions to act forcefully and affirmatively to protect minority interests in eliminating discrimination, then the legitimacy of the restrictions imposed on our agency and our authority of self-representation must be seriously reconsidered.
Equally important, the DPOA cases give reason to pause at another level. If courts can ignore the many institutional contexts in which minority agency has been restricted on the theory that majority representatives have an affirmative duty to combat discrimination and instead declare that the majority has no such obligation, then judicial review is a wholly unreliable alternative to the power and authority of self-representation. Minorities are well justified in rejecting the offer of "fair representation" and demanding, instead, the legal authority of self-representation, particularly when the courts' vision of the requirements of fair representation differs so markedly from the vision of the unrepresented.
2. 591 F.Supp. 1194 (1984) [hereinafter DPOA [I]] reversed 821 F.2d 328 (6th Cir. 1987) [hereinafter DPOA [II]].
4. DPOA [II], 821 F.2d 328 (1987).
8. Id. at 1105 (italics added).
9. According to the court, the unions' conduct did not violate Title VII because "[t]his conclusions follows from holding that there was no breach of the duty of fair representation, since discriminatory conduct constitutes such a breach." Seep, 575 F.Supp. at 1105.