In the sections above, I focused on the way 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 and negated through inconsistent interpretations of the relationship between the policies and procedures of Title VII and the NLRA. I have argued that Emporium Capwell and the union integration cases, Handy Andy and Allegheny General Hospital, maintain a structure of violence because they operate cumulatively to constitute woman of color as submerged minorities in an institutional structure which affords them no legal avenue of effective self-determination and agency nor any control over the conditions of inclusion or exclusion.
I have also argued that throughout these cases, the duty of fair representation has functioned as a legitimating image without which many of the avenues of agency and remedial recourse could not so easily have been closed and as the cement that holds together this series of arrangements which operate cumulatively and interactively to deprive women of color of an institutionally recognized collective identity.
In the next two sections, I want to sharpen the argument. The restrictions imposed upon our agency constitute structural violence only if I can somehow demonstrate structural closure. (1) In Emporium Capwell, the Court invoked three structural features to suggest that the restrictions on minority agency do not constitute structural closure: (2) the availability of remedies for breach of the duty of fair representation or substantive violations of Title VII, the internal democratic processes of the union protected by the LMRDA and "the community of interests shared by the members of the bargaining unit. (3)
In the next section, I want to focus on the inadequacies of both the DFR and Title VII from the perspective of women of color. To support the weight of this institutional structure of suppressed agency and compulsory submergence, the substantive standards imposed by the duty of fair representation and Title VII would have to be rigorous indeed. My basic purpose is to show that these substantive standards are in fact inadequate to counteract the structural disempowerment that we have seen erected on the basis of the DFR. Thus, in this first instance, structural violence reaches closure in the interpretative illusion of a duty without substance. My point of departure in this section will be Goodman v. Lukens Steel Co. (4)
The second section focuses on the way legal interpretation of the relationship between the Title VII and the NLRA operates to construct the relationship between representational authority and group membership in ways that again systematically restrict the opportunities of women of color to exercise effective agency in the institutional arrangements these decisions maintain. In this instance, structural violence reaches closure in the denial of representational authority and the avenues for acquiring such positions within the union's majoritarian structure.
1. The Duty of Fair Representation as Legal Fiction.
Like Emporium Capwell, Goodman v. Lukens Steel arose out of minority workers' efforts to resist union grievance processing practices which they believed discriminated against their interests in eliminating race discrimination from the workplace. Rather than organizing a boycott or walking a picket line, the black steelworkers in Goodman brought suit under Title VII and the DFR, alleging racial discrimination against their employer (5) and their collective bargaining agents, the United Steelworkers of America and two of its local unions. (6) Specifically, the workers claimed that, although the unions were aware that the employer was discriminating against blacks in violation of the anti-discrimination provision of the collective bargaining agreement, they refused to grieve or in any way challenge these discriminatory practices.
The plaintiffs further claimed that the Unions had ignored grievances, which were exclusively race-based, as for example black workers' complaints of racial harassment, and that they had regularly refused to include assertions of racial discrimination in grievances that asserted other contract violations by, for example, challenging testing practices on the ground that they favored young employees, but not on the basis of their racially disparate impact. In other words, when minority workers presented grievances based both on race discrimination and on some independent non-race related provision of the collective bargaining agreement, the Union would process the grievance only on the nonracial contractual basis. When minority workers presented grievances based exclusively on racial grounds, for example, claims of race harassment, the Union failed to process them at all. Thus, the complaints of black workers were grieved only to the extent they were based on non-racial grounds.
On certiorari to the Supreme Court, the Unions emphasized the absence of any racial animus and insisted that the failure to include race discrimination claims in grievances alleging other non-race related violations of the collective bargaining agreement did not violate Title VII. The Unions claimed they had followed this practice of not including racial discrimination claims in grievances claiming other violations of the contract "because these grievances could be resolved without making racial allegations" and because the employer would "get its back up" if racial bias was charged, thereby making it much more difficult for the individual to prevail. (7)
Adopting the District Court's reasoning, the majority (8) rejected the Unions' argument and held them liable under Section 703(c)(1) of Title VII. (9) While the trial court had been "initially impressed" by the Unions' "seemingly neutral reason" for failing to press race discrimination claims, it ultimately found the explanation unacceptable because the Union also ignored grievances, which were based exclusively on race discrimination. (10) It was the "virtual failure by the Unions to file any race-bias grievances until after this lawsuit started," which "rendered the Unions' explanation for their conduct unconvincing" in the trial court's opinion. (11)
"The Unions in effect categorized racial grievances as unworthy of pursuit and, while pursuing thousands of other legitimate grievances, ignored racial discrimination claims on behalf of blacks, knowing that the employer was discriminating in violation of the contract. Such conduct, the courts below concluded, intentionally discriminated against blacks seeking a remedy for disparate treatment based on their race and violated both Title VII and Section 1981. (12)
The Goodman opinion is significant at a number of levels. (13) Initially, perhaps the most curious thing about Goodman is not so much what it holds as what it fails or refuses to hold. The plaintiffs in Goodman raised two additional issues, which the majority's opinion left intentionally unaddressed. First, the Court refused to decide whether the Unions had, and consequently violated, an affirmative duty under Title VII to challenge the employer's racially discriminatory employment practices. Although both lower courts held that unions do have this duty, the Supreme Court refused "to discuss this rather abstract observation" because the case against the Union was based on more than "mere passivity." The Unions had intentionally and knowingly chosen not to challenge the employer's racially discriminatory actions and were therefore liable for their own affirmative misconduct. (14)
The Court's opinion also skirted the issue of fair representation and the scope of a union's obligation to challenge an employer's racially discriminatory practices under the duty of fair representation derived from its status as exclusive bargaining representative. The Unions argued that the duty of fair representation "had no relevance to the case." (15) The majority simply avoided the issue by stating that the Union's liability was established under Section 703 of Title VII. (16)
In Part III of his dissent, Justice Powell, joined by Scalia and O'Connor, addressed the issues avoided by the majority. According to Powell, unions have no duty to affirmatively oppose an employer's racially discriminatory practices under Title VII (17) or the DFR. Moreover, "[i]n the absence of a clear statement of legislative intent," (18) the Court should refrain from imposing such a duty because it would have a disruptive impact on the "basic policies" underlying American labor laws. Thus, Powell would have the Court limit the Unions' Title VII obligations (and the correlative rights of its protected classes) in order to preserve the structure of governance established by the labor laws. According to Powell:
A union, unlike an employer, is a democratically controlled institution directed by the will of its constituents, subject to the duty of fair representation. Like other representative entities, unions must balance the competing claims of its constituents. A union must make difficult choices among goals such as eliminating racial discrimination in the workplace, removing health and safety hazards, providing better insurance and pension benefits, and increasing wages. The Court has recognized that "the complete satisfaction of all who are represented is hardly to be expected." [citations omitted]. For these reasons unions are afforded broad discretion in the handling of grievances. (19)
Under Powell's interpretation, the Unions' grievance practices should be upheld as a reasonable exercise of union discretion to choose among the wide range of "causes" to be fought for in the workplace. The elimination of racial discrimination, like the enforcement of workplace safety rules and the negotiation of higher wages and benefits, is just one of the many causes competing for the Unions' attention and resources. The Unions' decision to prioritize interests other than the black workers' interest in eliminating racial discrimination was not invidiously discriminatory, presumably, because elimination of race discrimination is not the black worker's only interest. Presumably, black workers benefit from the Unions' activities in these other areas. Thus, the Unions' could legitimately conserve their resources by choosing to pursue only those interests, which the majority of workers had in common. (20)
If this interpretation prevails, unions will be legally authorized to ignore many workplace practices that burden only the "minority interests" of subordinated individuals, so long as they do not deliberately, intentionally and/or repeatedly refuse to process specific racial grievances. (21) In other words, problems not experienced by a white or male majority (for example, an employer's race based discrimination or harassment, wage discrimination, or sex harassment) could be lawfully neglected pursuant to the union's discretion to determine, prioritize and channel its resources to further "the common good" and/or the
interests of the most privileged workers with "the most to lose."(22)
In light of Emporium Capwell, Powell's approach represents another instance where the relationship between Title VII and the NLRA is manipulated to the detriment of minorities, for while Title VII does not expand our rights under the NLRA, the NLRA may contract them under Title VII. The question, of course, is whether Powell's interpretation (joined by Scalia and O'Connor) of the affirmative obligations of unions (or rather the lack any such obligations) will prevail when a majority of the Court deems the issue ripe for determination. The problem is that, neither the interpretative practices through which the relationship between Title VII and the NLRA has been previously resolved, (23) nor the current debate over the substantive standards governing the duty of fair representation provides any basis for expecting that Powell's interpretation of the requirements of fair representation will be ultimately rejected. (24) On the contrary, there is a significant body of DFR precedent, which like Powell, subordinates the protection of minority interests to the preservation of maximum union discretion. (25)
The seminal case is Vaca v. Sipes, (26) in which the Supreme Court held that breach of the DFR was not established by evidence that the union failed to process a grievance that was subsequently held to be meritorious. "[A] breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." (27) Since then, the Vaca standard has operated as a major obstacle to establishing the DFR as an effective vehicle for challenging majoritarian decisions that negatively affect the interests of racial minorities and women.
NAACP v. Detroit Police Officers Assocation (28) and Seep v. Commercial Motor Freight, Inc. (29) are illustrative. In DPOA [II], the 6th Circuit reversed a lower court decision holding that the police officers' union had violated its duty of fair representation by failing to oppose forcefully and effectively the massive layoff of recently hired black police officers. Most of these officers were hired pursuant to an affirmative action program adopted in 1974 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.
In holding that the union violated its duty to represent fairly the interests of black police officers in connection with the massive layoffs, the lower court focused on a number of factors. First, the court noted the DPOA's history of racial hostility and indifference to the rights and interests of black officers. (30) This hostility had prompted black officers to organize two committees, "the Guardians" in 1960s and the more recently organized Committee of Police Officers for Equal Justice. The court found that the DPOA had avoided dealing with and was hostile to both organizations. (31) The court also noted the total absence of black representation at the leadership levels of the union (32) as well as evidence of racial bloc voting among the union membership. (33)
More specifically, the court reviewed the union's response to the 1979 layoffs of predominantly black officers and found it "totally perfunctory and passive" in striking contrast to the efforts the union had made on other occassions when predominantly white jobs were at stake. (34) The first wave of layoffs began in October of 1979. The union received a letter indicating that as of October 12, 400 police officers, 71 percent of whom would be black, would be laid off. The union did nothing to avert the layoffs.
In August, to avert the layoff of more than 700 more police officers and the regressive impact on affirmative action, the Mayor of Detroit sent the DPOA a letter offering to modify the reverse seniority criterion so that layoffs could be effected from separate lists or, alternatively, to accept a 13.8% pay reduction in lieu of any futher lay-offs. (35) During the DPOA's executive board meeting of September 2, (36) the board received letter from the Guardians calling for action other than merely standing on seniority with reference to layoffs. The Guardian's letter stated in pertinent part:
"We understand [the Mayor's] proposals call for the temporary institution of separate seniority lists, or a temporary reduction of work hours and pay. We believe that either of these suggestions is reasonable and we urge you to accept one of them or at the very least to negotiate in good faith with the Mayor to avoid the layoffs. As you are aware, prior to the introduction of the City's affirmative action plan for the department the minority representation on the police force was less than 5 percent. Over the last six years, as the direct result of the affirmative action plan, the minority representation rose to over 33 percent prior to the October 1979 layoffs. However, the impending layoffs of 693 police officers will reduce the minority representation to less than 26 percent. . . .
"[W]e believe that the Union is duty bound, by its own constitution and by law, to protect that job security of all its members. Article III, § 2 of the Union's Constitution requires the Union's leadership to promote job security.
"Additionally, as the DPOA is the exclusive bargaining agent for all the police officers, it owes a legal duty to fairly represent all officers -- black and white, male and female. If the DPOA stands idly by and watches minority and female officers be subject to disproportionate layoffs, when the Mayor has offered reasonable ways to avert this result, the Guardians will believe that the DPOA intends this result. We will, therefore, view this as an intentional act by the DPOA to violate the duty of fair representation owed to minority and female members, and we will take appropriate action." (37)
Despite this entreatment, nothing came of the subsequent bargaining between the union and the Mayor. The union rejected the separate senority lists as well as the Mayor's pay reduction proposal, even when the proposed reduction was itself reduced from 13.8 percent to either 12 or 12.8 percent. The union also refused to permit the membership to vote on whether to accept the pay reduction, and the layoffs went into effect the next day.
According to the court, it was the DPOA's complete failure to take any action to preserve the jobs of the predominantly black officers [in contrast to its affirmative efforts on behalf of similarly situated white officers], rather than its refusal to make any particular concession that constituted the breach of its duty of fair representation. "The basic fact [is] that, when white officers were to be laid off, the union did something; when the overwhelming majority were blacks, the union did nothing. It is not the business of this court to decide precisely what the DPOA should have done . . . The duty of fair representation creates no such guidelines. The duty only commands that the union, when racial minorities are involved behave in a manner that is representative, not perfunctory and passive." (38)
Having found a breach of the duty of fair representation, the district court fashioned an appropriate remedy. Rather than assessing damages against the DPOA, the court ordered the union to integrate black officers into its leadership structure within one year. (39) According to the court, integration at the leadership level of the union was a more appropriate remedy and more likely to prevent future violations of the duty of fair representation than a damage award:
"If black members of the DPOA are given their proper representation in the leadership structure of the DPOA they can, in the future protect minority members against a breach of the duty of fair representation by the Union. It is this goal that the Court seeks. The Court is only intervening in the internal affairs of the DPOA to the extent necessary to asssure adequate representation of black members in the relationship between the DPOA and the City of Detroit." (40)
On appeal, the Sixth Circuit reversed both the remedy (41) and the finding of a substantive breach. (42) According the the Court, under Michigan law, the substantive standards governing the DPOA's duty of fair representation are governed by federal law and more specifically by the standards enunciated in Vaca v. Sipes. "Under [Vaca], the duty of fair representation is comprised of three distinct responsibilities: "(1) 'to serve the interests of all members without hostility or discrimination toward any', (2) 'to exercise its discretion with complete good faith and honesty,' and (3) 'to avoid arbitrary conduct.'" (43) While any one of three elements -- arbitrariness, discrimination or lack of good faith can create a breach, the Sixth Circuit found no basis for holding the union liable for its failure to respond the threatened layoffs of the black officers. First, while the unexplained failure to act may constitute actionable arbitrariness even absent evidence of bad faith, (44) "under Michigan law, a public employer's initial decision to lay-off is a permissive subject of bargaining. Therefore, the union had no mandatory duty to act on behalf of its members in response to the threatened layoffs. Absent a duty to act, failure to act forcefully does not breach the union's duty of fair representation." (45)
Moreover, while "[t]he failure to bargain against layoffs could also have been found to be evidence of bad faith or discrimination on the part of the union," according to the Sixth Circuit, "the District Court did not find that the union was improperly motivated in its reaction to the threatened layoffs. Rather, the District Court held that the union's failure to act alone constituted a breach of the duty of fair representation. Absent a finding of intentional discrimination or other improper motivation, the union's mere failure to bargain forcefully enough in a permissible context does not by itself constitute bad faith or discrimination." (46) In so construing the lower court's holding, the Sixth Circuit completely and unexplicably 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. (47)
The specific question raised by the DPOA cases is what evidence of "improper motivation" would have satisified the Sixth Circuit's analysis under Vaca v. Sipes. The more general question, however, 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.
Thus, for example, in Seep v. Commercial Motor Freight, Inc., (48) female clerical employees brought suit under Title VII against their employer, a commercial trucking company, their union local (Local 100) and the international union (the "Teamsters"). The plaintiffs also challenged a number of actions and inactions by the union under the duty of fair representation, all of which the court rejected for one reason or another. (49) Perhaps, the most distressing was the court's response to the plaintiffs' claims that the local had breached its duty to the female workers in the clerical unit by permitting employees in the predominantly male dock and driver units to cross their picket line. (50)
According to the court, the union committed no actionable breach. Citing Vaca v. Sipes, the court reasoned that "[a] breach of the duty of fair representation occurs only when the union's conduct toward members of the bargaining unit is arbitrary, discriminatory, or in bad faith." (51) Thus "a union has wide discretion in its representation of a bargaining unit and, if not acting arbitrarily, discriminatorily or in bad faith, will not be held liable simply because some members are disadvantaged by its actions . . . The principle may be extended to a union's action with respect to different bargaining units within the same local. A union may take action to benefit the local even though the effect is to favor one group over another."
Accordingly, in Seep, the union's decision to permit workers in the other all-male units to cross the plaintiffs' picket line was not discriminatory or in bad faith because those units "represented the overwhelming majority of the local's membership at Commercial." (52) Thus, "in those cases where the union took action which had an unfavorable impact on plaintiffs' unit, . . . 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." (53)
The court's reasoning in Seep is particularly disturbing, not only because, like DPOA II, it resonates with and reinforces the idea that Justice Powell's position in Goodman v. Lukens Steel is not all that controversial, but also because 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. (54) If the duty of fair representation 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.
From this perspective, Seep and the DPOA cases, like Goodman v. Lukens Steel Co, all raise substantial questions regarding the extent to which minority interests in being free from discrimination will be adequately protected through a system of exclusive representation by majority rule and a set of legal rules 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; it was invoked expressly in the union integration cases and implicitly in Emporium Capwell and Handy Andy. If, as it now appears, the duty of fair representation does not require unions to act forcefully and affirmatively to promote minority interests in being free from discrimination, then the legitimacy of the restrictions, which decisions like the integration cases, Emporium Capwell and Handy Andy, have imposed on our agency and our authority of self-representation must be seriously reconsidered.
Equally important, the DPOA cases, like Goodman, give reason to pause at another, perhaps, more distressing level. If, in Goodman, the Supreme Court can ignore the many institutional contexts in which minority agency has been restricted on the theory that majority representatives have an affirmative duty to promote our interests in being free from discrimination and declare that the scope of majority obligation to combat discrimination is an undecided issue -- and -- if, in DPOA [II] the Sixth Circuit can completely ignore the lower court's multiple findings of intentional race discrimination, then judicial review is a wholly unreliable alternative to the power and authority of self-representation. Minorities would be well justified to reject the offer of "fair representation" and demand, instead, the legal authority of self-representation, particularly when the courts' vision of the requirements of fair representation is markedly different from the vision of the unrepresented. (55)
2. Representational Structures and the Color of Representational Power
One of the most striking things about the representational structure established by the NLRA is the presumed irrelevance of race/gender, that is, the race/gender of the representative is purportedly irrelevant to his ability to represent fairly the interests of race/gender groups to which he does not belong. (56) This presumption is implicit in the fact that the racial/gender composition of the union leadership has never affected the level of review imposed upon a union, nor has it ever been invoked to invalidate the discretionary decisions made by white/male representatives on behalf of and very often at the expense of and even to the extreme detriment of nonwhites and white women. (57)
From one perspective, the apparent "irrelevance" of the race and gender of union officials appears to be an uncontroversial incidence of Title VII's proscription on race/gender discrimination. Thus, in Shultz v. Local 1291, International Longshoremen's Ass'n, (58) the court declared that a union by-law, which allocated various union offices among blacks and whites, violated Section 481(e) of the Labor Management Reporting and Disclosure Act (59) in part because the by-law violated Title VII. The Secretary of Labor had brought suit under Title IV of the LMRDA to set aside an election conducted pursuant to union by-laws which restricted union candidacy on the basis of race. More specifically, these by-laws included a provision [Rule 3(c)(3)] which allocated union offices as follows:
"In accordance with tradition heretofore observed, the President shall be of the colored race. Vice President, white, Recording Secretary, white, 4 Business Agents equally proportioned, 3 Trustees (auditors), 1 white & 2 colored, 2 Seargeant at Arms, 1 colored and 1 white." (60)
According to the court, the "basic issue" was "whether Rule 3(c)(3) is a reasonable qualification on the right of union members in good standing to be candidates in union elections and to hold office [pursuant to 29 U.S.C. Section 481(e)]." The court held that, given the apparent conflict between the Local's race conscious by-law and the requirements of Title VII, the rule was necessarily unreasonable:
"[W]e cannot consider as reasonable for purposes of the [LMRDA] what would be considered an unlawful employment practice under [Title VII]." (61)
The court further held the rule unreasonable because a "reasonable qualification" . . . must be measured in terms of the qualification's consistency with the Act's command to unions to conduct "free and democratic" union elections." In this case, the Rule would prevent 50% of the Local's membership from holding each office, consequently "there must be a very compelling reason why it should be upheld." (62) The court found no such reason:
"The major difficulty we find with the racial qualifications imposed by [the Rule] is that there is no objective relationship between the eligibility qualifications and the duties of the office involved. Whether one has merit or ability or experience to hold office is immaterial if the appropriate racial characteristic is not also present." (63)
Like Shultz, Donovan v. Illinois Education Association (64) involved an LMRDA challenge brought against various racial and ethnic restrictions in the union by-laws governing the election of officers. The Association was a union of about 50,000 public-school teachers governed by a 600 member Representative Assembly, all elected by the union members, and a Board of Directors, which was originally made up of 50 members -- some of whom were elected by the Representative Assembly, others by local affiliates of the union.
In 1974, a majority of the Association's members voted to change its by-laws in two respects. First, members of four minority groups -- blacks, asians, latinos and native americans -- were guaranteed eight percent of the seats in the Representative Assembly [8% of 600]. If they did not reach this level by the ordinary electoral process, the amended by-laws directed the Board of Directors to appoint enough additional members to the Assembly, "drawn from the specified minority groups," to give the groups eight percent of the seats in the (enlarged) Assembly. The second change increased the size of the Board of Directors by four and reserved these new places for members of the four minority groups. These reserved seats on the Board were in addition to any that minority members might obtain through election by the Representative Assembly or by local affiliates.
In 1977, the Secretary of Labor filed a complaint alleging that the Association had violated section 401(d) of the LMRDA,(65) by appointing rather than electing its Secretary-Treasurer and requested a court order directing the Association to conduct an election under the supervision of the Secretary of Labor. During the course of this litigation, the Secretary received complaints about the minority-group by-laws, concluded that they violated the LMRDA and asked the district court to declare them unlawful. Instead, the district court issued an order directing that the Secretary-Treasurer election be held pursuant to the Association's by-laws. The district court's opinion is significant because of the way it reads both the relationship between Title VII and the LMRDA as well as the requirements of the LMRDA, itself. According to the district court,
"The purpose sought to be attained by the candidacy restrictions of the bylaws is legitimate and might not be attained in any manner less destructive of other legally protected interests. Initiation of private and voluntary affirmative action programs such as the Plan now before the Court are not prohibited by federal law, and need not be the result of any judicial finding of past discrimination. See United Steelworkers of America v. Weber, 443 U.S. 193 (1979). . .
The affirmative action plan set forth in the IEA bylaws in question here is temporary in nature. Once the normal election process yields eight per cent minority delegates, no add-on delegates will be necessary to achieve the eight per cent ethnic-minority goal." (66)
In other words, the affirmative action program constitutes a "reasonable qualification" on candidacy for union offices because, as Shultz indicated, reasonableness must be determined in light of the policies and purposes of Title VII. After all, Title VII and the labor laws constitute a unified, national labor policy. Equally important, however, the court concludes that the affirmative action program furthers the purposes and policies of the LMRDA as well. According to the court,
"My determination that the bylaws of the Illinois Education Assocation impose reasonable qualifications for candidacy for union membership is in keeping with the Congressional goal of minimal interference to the self-government and internal affairs of unions . . . The legitimate and laudable goal of the union in attempting to secure representation for the ethnic-minority members previously denied them does not impinge upon the principle of free and democratic elections under the facts of this case. (67)
On appeal by the Secretary of Labor, the Seventh Circuit reversed. (68) According to the court, the permissibility, indeed, the desireability, even, of affirmative action programs under Title VII is quite irrelevant to determining whether the candidacy qualifications imposed by the affirmative action provisions of the union by-laws were "reasonable." That determination must, instead, be made exclusively in light of the policies and purposes of the LMRDA:
"[W]e begin by observing that despite the racial character of the challenged by-laws, the case does not involve the legality of affirmative action. The LMRDA was adopted long before affirmative action had been heard of, and the legislative history indicates that Congress did not want to legislate with respect to the racial practices, as such, of unions . . . Whatever may be the status of affirmative action under civil rights statutes or the equal protection clause of the 14th Amendment, those laws are not involved in this litigation . . . We may assume that under the LMRDA by-laws seeking to promote affirmative action are to be tested by the same standards as any other provisions affecting union elections. . . Our concern is not with the racial incidence of the restrictions but with their impact on freedom of candidacy and voting. (69)
In reviewing the affirmative action by-laws under the policies and intentions that underlay Congressional enactment of the LMRDA, the court concluded that the provisions were inconsistent with those purposes: "We have found no recent decision upholding a candidacy qualification that excluded a majority of the union's membership, however reasonable the qualification may have seemed." The fact that the by-laws, at issue, were enacted by majority vote was deemed irrelevant, as well, because "[plebiscitary democracy is not the theory of the electoral provisions of the LMRDA. If the white members of the Association are willing to vote generously in favor of minorities, they can be expected to elect minority-groups members to offices in the Association in sufficient numbers to make unnecessary the electoral restrictions." (70)
The problem with this reasoning is that the consistent, systematic and pervasive underrepresentation of minorities and women of any race in leadership positions within the labor movement is an apparent phenomenon. Union representatives are now and have almost always been uniformly white males. (71) This too was true of the Association, whose by-laws were invalidated in Donovan. In 1974, the Association had no minority officers and no minority members on the 50 person board of directors. The 600 representative assembly had only five to ten minorities, or less than two percent. (72) By 1980, one of the Association's principal officers was black, the Board of Directors was approximately 15% minority and the representative assembly was eight percent minority. (73) But for the affirmative action provisions in the union's by-laws, the same pattern of racial/gender bloc voting would have made such dramatic change an improbability. (74)
Thus, in short, while from one perspective the "irrelevance" of race, that is, of the irrelevance of group membership to the legitimacy of representational authority appears to be a non-controversial application of Title VII's anti-discrimination policies, in fact, it represents a further incidence of the [strategic] fragmentation Title VII and the NLRA that began with Emporium Capwell, was carried on in Handy Andy and Allegheny General Hospital and inverted in King v. Illinois Bell Telephone --all with the devastating impact of entrenching the institutional power of white/male majorities and the demobilization and disempowerment nonwhite/female minorities. Donovan carries this process even further, for while the formal/legal structure of union representation may be race and gender neutral, the concrete structure of representational power is not.
Donovan's resolution of the [non]relationship between Title VII and the NLRA constitutes the first instance of apparent structural closure. Having been denied the authority of separate representation by cases like Emporium Capwell and the union integration cases and the power of self-help in cases like King, having been compulsorily incorporated as submerged minorities in cases like Handy Andy, Donovan invokes the fragmentation of these regimes to proscribe the implementation of the only mechanism through which race/gender minorities can ever hope to obtain any degree of institutional power under the current structure of exclusive representation by majority will -- affirmative action programs that counteract the effects of race/gender bloc voting by white/male majorities.
Perhaps, however, the most bizarre aspect of the Donovan opinion is the way the court develops the argument that the by-laws undermine the LMRDA's policy of preventing self-perpetuating incumbancy. According to the court,
"The by laws do not even foreclose the bizarre possibility that the Board of Directors might fill up the bloc in the Representative Assembly reserved for members of the four minority groups with Asians who knew nothing about the problems of blacks, or with blacks who knew nothing about the problems of Asians, in order to construct a racial coalition that would keep the present Board members in office." (75)
By striking down the affirmative action by-laws, Donovan protects minorities from inadequate representation by members of other minority groups (who do not understand their plight), only to ensure they are represented by members of the white majority (who presumably do?). From this perspective, Donovan is problematic on another, a deeper, level. Given the majoritarian structure of representational power, the presumed irrelevance of race translates, defacto, into the presumed competence of white male union officials to prioritize fairly among the interests of nonwhites and white women. This presumption, in turn, constitutes the unstated foundation of the representational structure whose legitimacy is repeatedly reaffirmed in and through the doctrine of the "duty of fair representation" -- in other words, race/gender is irrelevant because union representatives have the duty and the ability (if they are not minorities) to represent all constituents fairly. Nevertheless, the treatment of the relationship between group membership and adequate representation in the union context differs markedly from the way that relationship has been treated in other contexts, most notably in the certification of class actions for purposes of Title VII litigation. (76) The implications of this difference are discouraging.
Consider that under Rule 23, (77) courts decide who may represent whom for purposes of challenging an employer's or a union's practices under Title VII and enforce these decisions by granting or withholding class certification. (78) Through their interpretation of Rule 23, courts have increasingly restricted the extent to which women of color (or any protected class member) can represent both nonwhite men and white women (or any member of a different protected class) as plaintiffs in Title VII class action (79) and have, thereby, contracted the kinds of employment practices that can be challenged in any given law suit, the kinds of remedies that can be obtained and the class of individuals who will benefit from them. (80) Interestingly enough, it is through the concept of "adequate representation" that women of color have been denied representational authority. (81)
In other words, while duty of fair representation cases reviewing union distributional decisions and administrative actions never question the competence of the white men who control these institutions to decide fairly in relation to the groups to which they do not belong, Title VII plaintiffs in general, and women of color in particular, are deemed incapable of representing, that is, of deciding between and on behalf of other individuals, whose interests may but need not necessarily be in conflict with theirs. By invoking this presumed incompetence, the doctrine of "adequate representation" has precisely the opposite practical effect on representational authority in these two contexts. Whereas the "duty of fair representation," which underlies and justifies the whole network of restrictions on minorities that we have already examined, operates to expand the representational authority of the white male union officers, the "requirement of adequate representation" limits the representational authority of women of color as plaintiffs in class action suits. (82) It thereby limits the scope of interests that can be promoted and the number of discriminatory practices that can be challenged in a particular lawsuit, requiring even victims of the same practices to mount their challenges in different lawsuits. (83)
The inconsistent treatment given to the relationship between group membership and representational legitimacy is again obscured by the fragmentation of doctrinal domains. The way the relationship is interpreted (or simply ignored) in duty of fair representation cases is never confronted in adjudication with the way that same relationship is interpreted in the context of class action certifications under Rule 23. In each of these contexts, however, the relationship between group membership and representational authority/legitimacy is an important vehicle through which institutional power is allocated among the various groups that inhabit and attempt to construct a workplace. Moreover, it is through its inconsistent resolution across these domains that this conceptual relationship operates systematically to maintain the structure of race and gender subordination. (84)
In short, then, the way the relationship between Title VII and the NLRA has been interpreted across these various domains constitutes a context for and a vehicle through which legal interpretation produces structural violence. The interpreted relationship between these regimes is not only analytically inconsistent, its cumulative effect is that, through this inconsistency, an institutional arrangement has been erected in which women of color find themselves with virtually no avenues for effective agency: the purported "irrelevance" of Title VII's anti-discrimination policies to the interpretation of the NLRA maintains a structure in which women of color engage in collective self-help at their peril (85) and have no vehicle for preventing the certification of a union that threatens to discriminate against them (86) or of compelling their inclusion in a union that seeks to exclude them. (87) Moreover, affirmative action programs that would afford women of color access to the leadership positions through which they might effect internal reform are proscibed, on the one hand, because Title VII prohibits race-conscious classifications (88) and, on the other hand, because the LMRDA's purposes of promoting union democracy and accountability must be interpreted independent and apart from the Title VII policies favoring affirmative action. (89) This substantial network of restrictions on our agency, which is grounded in the "irrelevance" of Title VII to the NLRA, is supplemented, on the other side, by the restrictions imposed on us as much through the "relevance" of the NLRA, which deprives us of authority we would otherwise have under Title VII to oppose employment discrimination (90) as through the "irrelevance" of collective rights to maintain a separate union. (91) The cumulative result is structural violence.
1. "Structural closure" refers to the cumulative and systematic closure of legal avenues of agency and recourse in and through the resolution of very different legal issues in very different cases. Thus, to say that closure is systematic is not to imply that it operates chronologically (i.e. in real time), nor that it is intentionally effected by some conscious and coordinated conspiracy among judges; rather, it is simply to suggest that the legal disempowerment effected through these structures is, for the most part, complete. Explaining the phenomenon of "structural closure" -- that is, the how and the why of it -- is the ultimate challenge of this Article and an issue I address most directly in Part III, through my analysis of "the unitary consciousness of legal reasoning." See infra esp. "the structures of subjective power". The short answer is that structural closure is best understood as the indirect consequence of the fact that while social power is fragmented across multiple decision-making forums and institutional roles, this power (both institutional and interpretative) has been historically and today remains for the most part concentrated in one contingent social group. That this asymmetrical allocation of power has produced a structure of violence from the perspective of disempowered social groups is, therefore, hardly surprising, for where there is no power, there is no justice. See supra n. 15 and accompanying text.
2. See also, David Abraham, Individual Autonomy, supra n. *** at 1271 (invoking "the availability of democratic mechanisms for voicing dissent within the union," "the possibility of winning over one's fellows either to change the bylaws or to end the strike," and "the possibility of displacing the current union" as alternative avenues that justify restrictions on individual autonomy).
3. The discussion of Allegheny General Hospital demonstrates the limits of "the community of interests" as a vehicle for ensuring that a white majority will not exercise its power to the detriment of minorities, for if women of color are segregated into job classifications constituting a race/gender segmented workplace, they may never be included in the bargaining unit in the first place. See supra n. *** and accompanying text.
5. With respect to the charges against the employer, the District Court found that the company had violated Title VII through the disparate discharge of minority employees during their probationary period, the toleration of racial harassment by employees, initial job assignments, promotions and decisions on incentive pay. These practices were held also violative of Section 1981. The claims against the employer were not disputed on appeal.
6. The plaintiffs also alleged claims against the unions under Section 1981. My discussion focuses on the Court's treatment of the Title VII and unfair representation claims.
8. Justice White wrote the opinion of the Court, joined by Rehnquist and Stevens. Although Brennan wrote a separate opinion, joined by Marshall and Blackmun, all three Justices joined the portion of White's opinion holding the Unions liable under Title VII and Section 1981. Brennan's opinion dissented with respect to Part I of White's opinion, which concerned the appropriate statute of limitations for claims under Section 1981 and is not directly relevant to the discussion at issue. Consequently, White's opinion represented the majority's view on the scope of a union's duty towards race discrimination grievants under Title VII. Powell, joined by Scalia and O'Connor, dissented from the finding of Union liability.
9. Title VII Section 703(c)(1) provides that "[i]t shall be an unlawful employment practice for a labor organization- to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color religion, sex or national origin.
Section 703(c)(3) makes it an unfair labor practice for a labor organization "to cause or attempt to cause an employer to discriminate against an individual in violation of this section."
10. Goodman, 482 U.S. at 667; 107 S.Ct. at 2624.
11. Goodman, 482 U.S. at 668 (emphasis added).
13. See infra n. ** and accompanying text.
14. Goodman, 482 U.S. 656, 665-6.
16. Goodman, 482 U.S. 656, 667.
17. Goodman, 482 U.S. at 687-88. Powell's Title VII holding is based on his interpretation of Sections 703(c)(1) and (3). According to Powell, Section 703(c)(1) "prohibits direct discrimination by a union against its members; it does not impose upon a union an obligation to remedy discrimination by the employer." Id. at 688. Moreover, 703(c)(3) prohibits unions from causing or attempting to cause an employer to discriminate. "To say that the union 'causes' employer discrimination simply by allowing it is to stretch the meaning of the word beyond its limits. Moreover, the language of 703(c)(3) is taken in haec verba from Section 8(b)(2) of the NLRA. That provision has been held not to impose liability for passive acquiescence in wrongdoing by the employer." Id.
20. In fact, Powell's rationalization is even more problematic than the one I suggest. Powell justifies the Unions' practice, not by reference to the common interest all workers (including blacks) had in the "causes" pursued, but by reference to the fact that some workers were entitled to more protection than others. In other words, Unions' could legitimately choose to privilege workers "with the most to lose." To the extent what you "have to lose" depends on what you were allowed to acquire, Powell's rationalizing principle means that individuals whose advancement in the workplace has been obstructed by discrimination may once more be discriminated against in favor of those who have advanced because of the opportunities they were not denied. In other words, if you've been screwed once, Powell would allow the Unions to screw you again. See Id. at 685 ("The Unions' policy against pursuing grievances on behalf of probationary employees [who were disproportionately black] also permitted the Unions to focus their attention on members with the most to lose.").
21. Alternatively, unions would have the authority to pursue practices which disproportionately burden minorities or white women as constituents with "the least to lose."
23. See supra Parts II B and C.
24. See infra discussion n. *** and accompanying text.
In any event, lower court opinions suggest that the distinction between a union's affirmative discrimination and union passivity in the face of employer discrimination will have to be resolved. Compare e.g. Alsup v. International Union of Brick Layers and Allied Craftsmen, 679 F.Supp. 716, 722 (N.D. Ohio, 1987) (union does not violate Title VII "by passively sitting by and failing to affirmatively oppose racially discriminatory employment practices."); Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir. 1991) (Goodman prohibits the "deliberate" and/or "intentional refusal to process race discrimination claims; however, the court cites its own precedent in Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th Cir. 1982) as authority for imposing affirmative duty unions to oppose employment discrimination and hold unions liable for acquiescing in it); Johnson v. Palma, 931 F.2d 203, 209 (2nd Cir. 1991) (Goodman did not hold "that mere passivity is insufficient to establish a bad motive. . . In any event, . . . refusal to proceed with a grievance process because of a company policy amounts to more than mere passivity").
25. See Eileen Silverstein, Interest Group Participation, 77 Mich. L.Rev. 1485, 1494. "In a 1977 memorandum, the General Counsel's office advised that the NLRB would not question a union's choice among competing interests unless that choice was wholly without objective justification and was based exclusively upon political considerations. However, since practically all partisan union decisions can be rationalized at least in part by objective factors, the Board's standard provides no genuine check on union discretion." See generally supra n. ***. (articles on DFR).
28. 591 F.Supp. 1194 (1984) [hereinafter DPOA [I]] reversed 821 F.2d 328 (6th Cir. 1987) [hereinafter DPOA [II]].
30. DPOA [I] at 1213. Despite the fact that almost 40% of its members were at one point black, the DPOA remained vehemently opposed to any form of affirmative action by the City and the police department. Indeed, the DPOA had spent over $500,000 financing anti-affirmative action litigation, both as interventors with the purpose to block such programs, as well as amici in cases not directly related to DPOA.
31. Id. The court found the DPOA's explanations for this hostility unconvincing and pretextual. According to the testimony of the DPOA officials at trial, not a single black officer in their union was trustworthy. "Any member of the Guardians is automatically "disloyal." Non-members of the Guardians, . . ., who [like one exemplary black officer] still expresses black concerns yet is a militant unionist, are "not interested in the union as a whole."
32. Throughout its entire history, the DPOA has been a white-dominated union. In its 41-year history, no black has ever been elected to any one of the top four positions in the DPOA. Only two black members have ever served on the executive board, and the board of directors has only 18 nonwhite members. The most significant committee is the grievance committee, which consists of three memebrs, who along with the four elected officers, constitute the bargaining committee. No black has ever served on the greivance committee. Moreover, the court noted that while one black police officer had been nominated for the office of sergeant-at-arms (one of the four officers of the union), he did not run for the office after a white member of the executive board told him that if he did, all blacks would be removed from their committee assignments. The white officer denied making the statement, but the court found as a matter of fact that he did. DPOA [I] at 1213.
33. At one point black police officers proposed amendments to the union's constitution to limit the amount of DPOA funds spent on litigation. This amendment and others proposed by black officers were "soundly defeated." Id.
34. Specifically, the court noted that, in 1975, in order to avert layoffs of white officers, "an agreement was reached that during a period of 18 months, each member of the bargaining unit would take 14 days off without pay and get an additional ten days off with pay and that these 24 days could be taken off during the 18 month period. Other minor concessions were made and the layoffs were averted." Id. at 1218 n. 18. And again, in 1981, the union agreed to a pay freeze to protect the jobs of the predominantely white officers, who were threatened with layoff. Id. By contrest, the union's response to the threatened layoff of 690 predominantly black officers was "totally perfunctory." No special meetings were called, nor were any possible compromises submitted for consideration or comment at any level of the union. Id. at 1218.
35. In prior collective bargaining negotiations, the City had attempted both to modify the reverse seniority layoff provision and to secure an agreement reducing pay rates to the level of pay increases that other City employee unions had accepted. The latter provision would have avoided all police layoffs; Id. at 1216 nevertheless, the DPOA rejected both proposals insisting that veteran police officers should not be required to subsidize new hires.
36. It is not clear that the meeting was covened to consider the Mayor's offer; nevertheless the union's response to the Mayor's offer was dated September 3, 1992 (rejecting offer, but offering to begin bargaining that same evening). Id. at 1216.
37. Id. at 1217. Unfortunately, but for our purposes quite significantly, the Sixth Circuit did not view it as a breach of the duty of fair representation.
38. Id. at 1219. Indeed, the fact that racial discrimination was the underlying factor driving the court's finding that the DPOA breached its DFR could not have been more clearly stated: "[T]his Court is not concerned with any reasonable activity of the DPOA in collective bargaining, even certain activity which sacrifices the interests of minorities for the majority. This Court is only concerned with activity that is arbitrary, racially discriminatory, and not in good faith." Id.
39. Id. at 1220. Specifically, the court order that "within 12 months of the date of this opinion, all committees of the DPOA, especially grievance and finance, the board of directors, and the executive board shall reasonably reflect the racial composition of the union."
41. The district court's decision ordering integration of the union's leadership was found inappropriate because "[c]ourts are reluctant to allow the electoral processes of a union to be abridged. In Donovan v. Illinois Education Ass'n, the 7th Circuit struck down a union's voluntary plan to allocate a certain percentage of its elected offfices to minorities where there had been no finding of prior intentional discrimination by the union." DPOA [II] at 331. Donovan is discussed at length infra n. *** and accompanying text.
42. DPOA [II], 821 F.2d 328 (1987).
43. Id. at 332, quoting Goolsby v. City of Detroit, 419 Mich. 651, 664, 358 N.W.2d 856, 863 (quoting Vaca v. Sipes).
44. Id. at 332, citing Goolsby, 419 Mich. at 679 (failure to process grievances of members can constitute arbitrariness sufficient to satisfy Vaca's third prong even absent bad faith).
47. See Supra n. ** and accompanying text.
49. The plaintiffs alleged as breaches of the duty of fair representation, the following actions and inactions by the union: (1) instances of sexual harassment which were never made the subject of a formal grievance; (2) failure to include the plaintiffs' predominantly female bargaining unit, ie. the clerical workers unit, under the National Master Freight Agreement (which resulted in lower wages and less favorable fringe benefits, seniority rights, and transfer privileges, as compared with the all-male units included in the Agreement). According to the court, the union breached no duty because the plaintiffs' exclusion from the Agreement was due to the employer's refusal to agree to their inclusion despite the fact that the Local repeatedly "raised the issue." (3) execution of the 1973 contract without ratification by the unit. Here the claimed breach was rejected on the grounds that unions are not required to submit collective bargaining agreements to the membership "unless such a procedure is expressly mandated by the agreement itself or by the constitution, by-laws, or rules and regulations of the union." Thus, because the union was not required to submit the contract for ratification, the union's failure to do so was not arbitrary, discriminatory or in bad faith; and (4) the plaintiffs challenged the union's conduct during the 1972 strike conducted by the plaintiffs' bargaining unit (when the local refused to request weekly strike benefits for striking clerical workers and authorized employees in the other units to cross their picket line).
50. The employees at Commerical were members of three separate bargaining units represented by Local 100. One unit consisted of long-haul or "over-the-road" drivers. A second unit consisted of short-haul or "city" drivers as well as dock workers whose basic function was to load and unload the trucks. Combined, these units had over 100 members, none of which were ever female.
The third unit consisting of approximately 15 members represented the office or clerical workers. Plaintiffs were members of this unit, which was composed predominantly of females although there are some male members. Seep, 575 F.Supp. at 1101.
51. Seep, 575 F.Supp. at 1104.
53. Id. at 1105 (italics added).
54. 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.
55. Recall the difference between the Sixth Circuit's and the Guardian's assessment the DPOA's duty of fair representation. Supra n. ** and accompanying text. Recall also that while the Goodman majority held the union defendants liable under Title VII, the Court's reasoning restricts union liability to cases in which a union's refusal to process any and all race-based grievance gives rise to an inference of intentional discrimination. Thus, under Goodman, it is not clear that the grievance practices objected to in Emporium Capwell would have been actionable under Title VII, for while the union refused to pursue the group-based approach sought by the minority dissidents, it did, after all, process the race discrimination grievances of two black individuals. See infra n. ** and accompanying text. In these instances, where the objectives sought by minority workers differ so significantly from the requirements of law as interpreted by the courts, legal rules, like Emporium Capwell, which suppress minority agency and, instead, channel the enforcement of Title VII's anti-discrimination mandate into judicial forums, operate directly and significantly to maintain the existing structures of subordination.
56. Emporium Capwell (separate representation of minorities by minorities is not necessary to achieve the elimination of race discrimination)
57. Thus, the fact that the DPOA was controlled by an all-white leadership was never considered relevant to determining whether the union's refusal to negotiate for time share or reduced pay in order to prevent massive layoffs of recently hired black officers violated its duty of fair representation. See NAACP v. Detroit Police Officers Ass'n, 591 F.Supp. 1194 (1984), reversed, 821 F.2d 328 (6th Cir. 1987). Nor was the composition of the all male union leadership considered relevant to determining the validity of the union's refusal to support a strike by the plaintiffs' predominantly female local. Seep v. Commercial Motor Freight Inc., 575 F.Supp. 1097 (1983).
59. Labor-Management Reporting and Disclosure Act of 1959, Section 401 et. seq., 402 (a-c), 29 U.S.C.A. Section 481 et seq., 482 (a-c) [hereinafter "LMRDA."] provides: "In any election required by this section which is to be held by secret ballot, a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof." Id. at 1206.
60. The by-law was negotiated as part of the merger of two formally segregated locals. Its purpose was to prevent the submergence of minority representation after the merger. For an account of the use of race-based allocations of union offices in the context of union mergers see generally William Gould, BLACK WORKERS IN WHITE UNIONS, pp. 126-135.
61. Shultz v. Local 1291, 338 F.Supp. at 1208. See also Alexander v. Gardner-Denver Co, 415 U.S. 36 (1973) (reflects a similar interpretative relationship between Title VII and the NLRA). There the Court held that an employee's Title VII right to trial de novo was not barred by a prior submission of his race discrimination claim to final arbitration under the nondiscrimination clause of a collective-bargaining agreement. Since courts ordinarily defer to final arbitration as a matter of policy under the NLRA, the case clearly gave priority to the vindication of Title VII rights over NLRA policy. Had Emporium Capwell followed Gardner-Denver, the black workers' Section 7 claim would have been upheld. As it is, the structure operates to channel the individual's Title VII claim from one white institution to another, ie. from grievance/arbitration to courts, which appear more "objective" and probably are more objective under a Fiss type approach, but are nevertheless no more objective under Balkin approach. See infra n. ** and accompanying text for discussion of relationship between legal agency and objective justice.
65. 29 U.S. C. Section 481(d).
66. Marshall v. Illinois Education Assocation, 511 F.Supp. 144, 148-9 (1981).
67. Marshall v. Illinois Education Assocation, 511 F.Supp. at 149.
68. Donovan v. Illinois Ed. Ass'n, 667 F.2d at 640 (Posner).
70. Id. at 642. See Wygant v. Board of Education, discussed infra at *** (another example where court refused to give effect to affirmative action provisions adopted by majority vote of a predominantly white union albeit, in Wygant, the provision was struck down under the Equal Protection clause rather than the LMRDA).
71. See generally Goldberg, Affirmative Action in Union Government: The Landrum-Griffin Act Implications, 44 Ohio S.L.J. 649 (1983); Crain, Feminizing Unions: Challenging the Gendered Structure of Wage Labor, 89 Mich. L. Rev. 1155 (1991). Consequently, doctrines which expand the authority of union officials have in fact expanded the power of white males over nonwhites and white women in concrete workplaces.
72. Michael Goldberg, Affirmative Action in Union Government, 44 Ohio State L. J. 649 (1983).
74. Professor Goldberg provides an insightful analysis of the many ways in which redistributed representational authority might further the LMRDA's policies of promoting internal democracy and accountability. Id. The problem with affirmative action programs in general and the Donovan version in particular is that it substitutes ascriptive representation for institutional accountability. At one level, there is a problem with a system in which minority representatives are appointed by the Board of Directors rather than elected by the minority. See generally Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 Mich. L.Rev. 1077 (1991) [hereinafter "Triumph of Tokenism"] (rejecting ascriptive representation as inadequate foundation for adequate represention); Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 Vir. L.Rev. 1413 (1991). Under the at-large majority voting structure of most unions, however, minorities are unlikely to win union offices without such programs. Consequently, either such programs should be permitted or separate representation of some sort should be institutionalized. See infra n. *** and accompanying text (for review of alternative models of interest representation).
76. Class action certifications under Rule 23 are only one context in which the relationship between group membership and adequate representation operates to restrict representational authority when the representatives are racial minorities. See e.g., Alexander Aleinikoff, A Case for Race Consciousness, 91 Columbia L.Rev. 1060 (1991) (critique of notion that black political control of local government warrants heightened scrutiny of affirmative action set-aside programs); Compare Wygant v. Jackson Board of Education , 476 U.S. 287, 106 S.Ct. 1842 (1986) (fact that white majority voted for affirmative action layoff provision not relevant to analysis declaring provision invalid) discussed infra n. ** and accompanying text; See also Martin v. Wilkes, 109 S.Ct. 2180 (1990) (right of white male majority to be separately represented in negotiation of consent decree or decree not binding); Civil Rights Act 1991 (modified Martin to extent that consent decree will be binding on white workers if they are "adequately represented" in its negotiation).
77. Rule 23 provides in pertinent part, as follows:
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will farily and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability of undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
78. See Grosberg, Class Actions and Client Centered Decision Making, 40 Syracuse L. Rev. 709 (198)(the threat of losing class certification is an important factor in structuring an action).
79. See Shoben, Compound Discrimination: The Interaction of Race and Sex in Employment Discrimination, 55 N.Y.U.L.Rev. 793, 823-36 (1980) (arguing that conflicts of interests not inherent); Compare e.g Colston v. Maryland Cup Corp. 18 FEPC(BNA) 83 (D.Md. 1978) (black female can represent only black females because antagonism towards white females and inability to represent adequately both black males and females); Richardson v. Coopers and Lybrand, 82 F.R.D. 335 (D.D.C. 1978) (class restricted to black females); Greene v. Southland Corp., 83 F.R.D. 117 (N.D. Tex. 1979) (same); Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th Cir. 1983) (same). See also Beck v. Mather, 417 F.Supp. 648 (W.D.Vir. 1976) (white female cannot represent blacks); Bartelson v. Dean Witter, 86 F.R.D. 657 (E.D. Penn 1980) (white female may only represent females); Majestke v. City of Chicago, 740 F.Supp. 1350 (N.D. Ill. 1990) (class represented white police officers restricted to whites only; if class contained anyone other than whites, court held there would be an inherent conflict of interests).
80. See Deborah Rhode, Class Conflicts in Class Actions, 34 Stan. L. Rev. 1183 (1982) (costs of maintaining a class action makes it hard to find lawyers; fragmenting classes into subgroups requiring separate representation reduces likelihood that claims will be heard).
81. See e.g. Abron v. Black & Decker, Inc., 654 F.2d 951 (1981); Payne v. Travenol Laboratories, Inc., 673 F.2d 789 (1982) discussed at length in Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex, supra n. ** .
82. Class action plaintiffs in fact have very little authority over and often little input into the conduct of litigation. See generally Derrick Bell, Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470 (1976); Deborah Rhode, Class Conflicts in Class Actions, 34 Stan. L. Rev. 1183 (1982). In a recent article, Class Actions and Client-Centered Decision Making, 40 Syracuse L. Rev. 709 (1989), Professor Grosberg proposed adding a new rule to the Model Rules of Professional Conduct. The rule would establish a general checklist of procedures designed to ensure that named plaintiffs are representative of the class, increase class members' access to information and opportunity to participate and facilitate the identification and resolution of intraclass conflicts over remedial goals. Id. at 778-779. Compared to Grosberg's proposed rule, cases limiting the representational authority of women of color do absolutely nothing to ensure "adequate representation." On the contrary, class actions in which women of color have been named plaintiffs have been decertified under the doctrine of "adequate representation" even after significant benefits were obtained for the subgroups which the women were deemed incapable of representing. See e.g. Abron v. Black & Decker, Inc., 654 F.2d 951 (1981); Payne v. Travenol Laboratories, Inc., 673 F.2d 789 (1982). Indeed, the practical effect of restricting representational authority is simply to give defendant employers a doctrinal peg through which to limit the number of employment practices that can be challenged and the number of victims that can obtain relief in a single lawsuit as well as reducing the likelihood that the lawsuit will be brought at all. If the courts' purpose were really to ensure adequate representation, they ought to focus the relationship between the attorney and the class, rather than declare an inherent conflict among the multiple victims of the employer's discrimination.
83. See Shoben, Compound Discrimination, supra n. *** at 834 (arguing that subclassing should occur only in the event of actual conflict and preferably only at the remedial stage of bifurcated class actions because of the burden subclassing has on the conduct of class actions).
84. Based on responses I received while disseminating earlier drafts of this Article, I anticipate that this project will generate a whole series of objections that can loosely be categorized as a challenge to the practice of comparing the treatment of legal concepts (like representational adequacy) across distinct doctrinal and institutional domains. It might be argued, for example, that my analysis of the way the doctrine of fair representation operates across the representational structures of the NLRA and Rule 23 is too formalistic and anti-contextual. See e.g. Richard Pildes, Conceptions of Value in Legal Thought, Mich. L.Rev. (criticzing Kelman's approach as insufficiently contextualized). In other words, the argument would go that the doctrine appears incoherent only because the question of representational authority has been abstracted from the specific institutional context in which that authority is to be exercised. There are, in fact, good reasons why elected union officials should have the power to represent members of social groups to which they do not belong, while self-appointed class action plaintiffs are denied this authority. The problem with this sort of argument is that the minority does not elect the representatives whom the law invests with exclusive representational authority. Indeed, those representatives might not have been elected even by the majority. See e.g. RCA Manufacturing Co., 2 NLRB 168 (1936); Lemco Construction, 283 NLRB 459 (1987)(officials are to be elected by majority vote, even if majority of workers do not vote); See generally, Alan Hyde, Democratic Collective Bargaining, 93 Yale L. J. 793 (19**). In any event, to take issue with this project at this level is, quite frankly, to miss the point. My point is that context matters, it is simply a different context that I am invoking. See infra Part III.
85. Emporium Capwell, supra n. ***
87. Allegheny General Hospital