Abstract

Excerpted From: Andrew Hull, “Prisoners of the Union”: Emporium Capwell and the Decline of Concerted Activity Against Racial Discrimination, 22 UC Law Journal of Race and Economic Justice 211 (January, 2025) (199 Footnotes) (Full Document)

The National Labor Relations Act (NLRA), while representing perhaps the greatest legislative achievement of the American labor movement and one that still steers labor organizing today, was also a product of legislative horse-trading and capitulations to white supremacy. This background of the NLRA is mainly referenced in the context of section §152(3), which excludes domestic and agricultural labor from the Act's protections. The New Deal, while still offering a number of benefits for Black workers, also contained numerous exclusions, and the legislative debates are riddled with racist articles. The NLRA's exclusion of sectors with predominately Black workforces is but one example of the New Deal's accommodations for Jim Crow.

However, the NLRA has other provisions which, in application and judicial interpretation, have also had deleterious effects on the ability of Black workers to combat discrimination in the workplace. This article will focus on one provision in particular: §9(a), codified as 29 U.S.C.S. §159(a), which provides for a labor union to operate as the “exclusive representative” in bargaining with the employer for a designated group of workers:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

§159(a) appears facially neutral with respect to race. Indeed, the provision appears to provide some level of flexibility for workers to advocate for improvement of their labor conditions. However, as will be seen below, the history of jurisprudence around §159(a) is one of slowly restricting workers' capacity to bargain outside of the union's formal structure, including over instances of racial discrimination. The court's embrace of a rigid interpretation of §159(a) hinders the struggle for racial justice because it restricts the ability of racialized union workers to use every tool at their disposal to combat discrimination in their employment. Eliminating racial discrimination and promoting the collective strength of workers are both important public policy goals, but the Court's current interpretation of §159(a) subordinates the goals of anti-racism to the goals of unionism.

This article will focus on two major steps of §159(a)'s transformation into a weapon against civil rights. The first, and most significant, case is Emporium Capwell Co. v. Western Addition Community Organization, an 8-1 decision authored by Thurgood Marshall and dissented to by William O. Douglas. In Emporium Capwell, the court upheld the termination of several Black union workers who picketed over racial discrimination claims that were slowly progressing through the grievance procedure. This case signaled the closure of an alternate line of cases that understood union activity in a much less ossified light, one that comprehended the importance of workers' ability to advocate for conditions outside of the formal structures of a union-employer bargaining relationship.

In Emporium Capwell, Justice Douglas worried that the court's decision would make Black workers the “prisoners of the union,” a tragedy for both racial equality and labor rights. Douglas was partly right: Emporium Capwell laid the groundwork for Black workers to become the joint prisoners of both the union and the arbitrator. This leads to the second major case considered by this article, the 2009 case 14 Penn Plaza, LLC v. Pyett, a 5-4 decision authored by Clarence Thomas. 14 Penn Plaza applied the (pre-NLRA) 1925 Federal Arbitration Act (FAA) to collective bargaining agreements - despite collective bargaining agreements (CBAs) being expressly governed by the NLRA and overseen by the National Labor Relations Board - with Thomas arguing that “nothing in the law suggests a distinction” between CBAs and agreements governed under the FAA. The effect of this ruling was to allow union collective bargaining agreements to contain mandatory arbitration over civil rights abuses with no opportunity to achieve de novo review in the judiciary.

14 Penn Plaza, as almost immediately recognized, would have a deleterious effect on the ability for racial minorities and women workers to vindicate their civil rights. This article will argue that Thomas' opinion in 14 Penn Plaza was a culmination of the shortcomings present in Marshall's opinion in Emporium Capwell, especially the drastic over-emphasis on the ““exclusive” nature of the relationship between the union and employer. In the wake of 14 Penn Plaza, Black and other racially marginalized workers can be precluded from vindicating their Title VII rights in court or effectively organize against the employer, all because of the collective bargaining agreement.

After considering Emporium Capwell and its legal legacy in 14 Penn Plaza, this article will end with some theoretical reflections on this line of cases. Specifically, the article will consider how Emporium Capwell is a case where Critical Legal Studies (CLS), Critical Race Theory (CRT), and Law & Political Economy (LPE) theorists can come to fruitful agreement with each other and draw from their shared ancestry of Legal Realism. Emporium Capwell's ecumenical value to radical legal theorists is an example of a legal correlate to the phenomenon Cedric Robinson calls “racial capitalism.”

With Emporium Capwell as the background, we can even see how these theorists can reconcile with Marxist theorists (their traditional foils in radical theory). Consider that Marxist writers have argued that labor unions, despite their apparent short and medium-term benefits, still legally operate inside a framework shaped by the capitalist mode of production. Meanwhile, critical race theorists have argued that American law is fundamentally formed by racism - especially anti-black racism - due to the foundational legacy of chattel slavery.

There is a way to combine both ideas. Drawing on Derrick Bell's idea of ““Racial Realism” and his critique of Warren Court era civil rights discourse, I propose that Emporium Capwell is a valuable case for demonstrating the utility of combining these views into a theory of “racial-capital realism,” reminiscent of Cedric Robinson's Black Marxism. This view proposes that an overly formalistic understanding of law divorced from material realities, especially the realities of being a racialized worker, leads to perpetuating racial inequality inside capitalist labor relations.

Emporium Capwell represented the end of a more fluid understanding of “exclusive representation” of the union that allowed for concerted minority action to tackle racial discrimination. This alternate path is on display in 1960s US Courts of Appeals cases such as R.C. Can, Rubber Rolls, Packinghouse Workers, and Western Addition Community Organization. This article will also consider these cases and how their approach to labor organizing reflected a more realistic understanding of the union's role as exclusive representative. With the Emporium Capwell Court's restrictive understanding of exclusive representation, the struggles of non-white workers for equality were subsumed under the terms of the collective bargaining agreement, even if the rest of the union's rank-and-file supported the activities of the workers' activities. Arbitration and its ability to operate as a sort of “private government” that is nearly “lawless” increased alongside this. 14 Penn Plaza represents a drastic subordination of workers' civil rights concerns to the agreement engendered between the employer and union.

However, Clarence Thomas in 14 Penn Plaza could not have achieved this ruling without Thurgood Marshall in Emporium Capwell. This result seems highly ironic given how seemingly opposed these Justices are in jurisprudence, but this reliance can also be seen as evidence of both Derrick Bell's critique of Civil Rights Era jurisprudence and of Marxist critiques of labor organizing in a capitalist legal order. This dual vindication hints towards a mode of legal interpretation - racial-capital realism - that can grasp the continued impact of racial capitalism on the American legal order.

Outline of Argument

In Section 1, this paper will discuss the case Emporium Capwell Co. v. Western Addition Community Organization, the cornerstone case that allowed the Court to construct its opinion in 14 Penn Plaza. After examining the facts behind Emporium Capwell and its procedural history, this essay will examine the majority opinion, authored by Justice Marshall, along with the dissent by Justice Douglas. This essay will consider how Marshall weighs dueling public policy goals and comes out in favor of union rights.

As will be seen in Section II, Emporium Capwell did not come out of thin air. Two years before Emporium Capwell, the NLRB in their case Jubilee Manufacturing had already developed an out of touch understanding of racial discrimination in the workplace: its origin, its effects, and how workers organize against it. The Board decided in Jubilee that racial discrimination is not an unfair labor practice, which the Board understood to mean an ““inevitable” violation of workers' ability to collectively organize. Already in this case, we see a bifurcation between civil rights and union rights, with union rights taking precedence.

Section III illustrates it did not have to be this way. Before Emporium Capwell and Jubilee, Courts of Appeals were exploring an interpretation of §159(a) that adopted a more capacious understanding of how workers can independently bargain with the employer, especially around racial discrimination. Two cases that are especially relevant here are NLRB v. Rubber Rolls (3d Cir. 1967) and NLRB v. R. C. Can Co. (9th Cir. 1964). These cases did not see a tension between independent organization by workers against racial discrimination and the collective bargaining position of the union. These cases were decided during the height of the Civil Rights Era and reflective of the national struggle over making racial equality a major public policy goal. The majority opinion in Emporium Capwell represented the closure of this line of interpretation, but Douglas's dissent represented the final expression of this interpretation. While defeated, this outcome was contingent and could have achieved ultimate vindication in Emporium Capwell.

The above sections were all about cases that slowly restricted the reading of §159(a) and made the collective bargaining agreement more controlling for how union workers may bargain with their employer. In Section IV, there will be a brief examination of how to think about collective bargaining agreements (CBAs). What are CBAs? What is the goal of a CBA? Is a CBA analogous to any form of contractual agreement? What will be seen is that American jurisprudence fundamentally sees the CBA as a trade contract, wherein the union functions as large hiring hall and the employer agrees that they will hire from that “hiring hall” and provide those hired with certain term of employment. With this jurisprudence, the objective of generally promoting individual worker welfare or pursuing some sort of collective benefit takes a backseat to facilitating the buying and selling of labor power. This understanding of unionization and collective bargaining is key to considering why §159(a) began to take on a more restricted reading. When worker welfare becomes subordinate to maintaining a trade relation between two organizations, the civil rights violations of individual workers will similarly become subordinate to facilitating this purchase of labor power.

In Section V, the strands examined in Sections I-IV come together with the examination of 14 Penn Plaza. This case holds that a collective bargaining agreement may contain a mandatory pre-dispute arbitration clause that covers claims of racial discrimination. This case dissolved the distinction between collective bargaining agreements and other types of contracts by applying the Federal Arbitration Act (FAA) to CBAs made under the NLRA. As pointed out by Souter in his dissent, this represented a rejection of a distinction held by every Court of Appeals except the Fourth. Most fundamentally, this case held that an employee's individual civil rights claims can be foreclosed by a collectively bargained agreement. To justify this, Thomas relied on Marshall's reasoning in Emporium Capwell to embrace a strict reading of the union's status as the exclusive bargaining representative. Douglas's fear reaches its realization in this case. By failing to recognize the importance of providing both formal and informal methods for fighting racial discrimination in the workplace and by an overly restrictive reading of the union's bargaining exclusivity, Emporium Capwell made it possible for the union to even control the worker's access to the courts and civil rights agencies (the one path Marshall clearly believed should stay open). However, the path to 14 Penn Plaza had many forks in the road that could have led to greener pastures. If the NLRB had endorsed circuit court decisions that racial discrimination was an unfair labor practice, if R.C. Can and Rubber Rolls' reading of §159(a) had prevailed, if Marshall agreed with Douglas, Black workers would have found themselves in a markedly better legal landscape.

In Section VI, the promises and dangers of labor arbitration around civil rights issues will be considered. The problems of construing a CBA as mainly a trade agreement, and how this affects civil rights claims of workers, will be further discussed. While arbitration does present some benefits in terms of being cheaper and faster, it also can lead to a worker subjecting their civil rights to a lawless arbitrator who is afforded nearly total deference by the courts. This increased arbitration has given rise to a sort of privatized justice that can threaten to undermine public policy commitments to racial equality.

Sections VII and VIII conclude this paper by showing the theoretical richness of studying the road from Emporium Capwell to 14 Penn Plaza. The evolution of §159(a), and how this corresponded to the rise and fall of the Civil Rights Era, provides fertile ground for various sorts of legal theorists. In particular, the development of §159(a) might allow a reconciliation between Realist-inspired legal theories and Marxist theories of law.

Starting from the Realist side in Section VII, Legal Realism and its descendants like CRT and LPE emphasize the semantic contingency of law and how this makes law subject to both structural racism and the unconscious racism of individual judges. In contrast, Marxist theories tend to downplay this semantic contingency and see law as a socially determined component of the superstructure that develops to reinforce the status of the ruling capitalist class. This perceived tension prevented much potential coalition building between these various camps over the decades. However, §159(a)'s development provides an instance where these camps can all have something to say to each other. CRT, especially with Bell's interest convergence theory, can provide an account of §159(a) that reckons with how socially determined law is in a racist capitalist society. In this way, CRT can build its half of a bridge to the Marxists.

Section VIII considers §159(a)'s development from the Marxist angle. Contrary to common perception, Marxist theories do not see law operating with an almost mechanistic determinativeness in favor of the ruling class. In reality, there is plenty of room for contingency and possibility for workers to use the law for their ends. These glimmers of alternate paths for §159(a) can be seen in Board and Circuit Court decisions during the 1960s and early 1970s. While the course of history came to favor an interpretation of §159(a) that prized thinking of the union as a hiring hall with a monopoly on its members' labor power and the power to bargain away those workers' individual rights, it did not have to turn out this way. By adequately appreciating the role of the contingent in Marxian analysis of political-economic developments (including developments in “superstructural” elements such as law), Marxists can build their half of the bridge to the Realists.

What does this bridge look like when completed? This essay proposes that one Realist-inspired theoretical approach in particular - Law and Political Economy - can serve as a sort of interpretative “shell” that makes it possible to apply Cedric Robinson's theory of racial capitalism (described most prominently in Black Marxism) in a legal context while preserving many of the insights pioneered by Critical Race Theorists. This application of Robinson's theory to law gives rise to a “racial capital realism,” a hybrid theory capable of understanding the fraught dynamic between race and capitalism in the law. On this account, law starts off interpretatively contingent and ambiguous, but over time these contingencies and ambiguities tend to be ironed out through a jurisprudence that becomes increasingly static and ossified. This development will tend to occur in ways that reify both capitalist labor relations and racial inequality. Bell, Britton-Purdy, Marx, Llewellyn, and Robinson can all come together, even if the occasion is to collectively lament the evolution of §159(a) of the NLRA.

[. . .]

This article began by considering a major labor law case, written by a giant of the civil rights era, that dramatically curtailed workers' concerted actions against racial discrimination. While Marshall believed he was preserving access to formal legal means to fight discrimination while defending the majoritarian government of unions, his reasoning eventually led to the former being consumed by the latter in 14 Penn Plaza with a majority written by Marshall's successor: Clarence Thomas. This pathway provides a valuable example for analyzing how overly abstract legal principles and excessive emphasis on formal means divorced from a realistic understanding of how the law operates in practice can lead to the shoring up of racial capitalism. This article proposes that the Law & Political Economy movement can facilitate a fruitful exchange with Robinson and Bell to create a viable framework (“Racial Capital Realism”) by which to understand this phenomenon in American law. Racial-capital realism soberly shows the extent of the challenge for those committed to labor rights and racial equality and is not fooled by the promise of merely formal legal means removed from practical reality. However, it still believes these challenges can be overcome, that the success of racial capitalism was as contingent as its defeat is, and legal interpretation is a vital battlefield for overcoming racial capitalism. To adapt Marx one more time: we make our own history and our own laws, but we make neither of them as we please.

Derrick Bell's “Racial Realism” is a bracing read that is unflinching about the dim prospects of obtaining racial equality in the United States, especially as he watched Civil Rights Era gains slowly curdle and diminish. However, he never dismissed the promise of struggle by Black workers. This hope without optimism is a critical aspect of Bell that is rarely emphasized, and it is what makes him a powerful ally for radicals. It is Bell who writes, “We must realize, as our slave forebears, that the struggle for freedom is, at bottom, a manifestation of our humanity that survives and grows stronger through resistance to oppression, even if that oppression is never overcome.” Marx could not have said it better.

However, when it comes to contingent efforts against determined systems, this article will give Mrs. MacDonald the last word. One of the most moving passages of Racial Realism comes at the very end of the article as Bell recounts his interaction in 1964 with Biona MacDonald of Harmony, Mississippi, a poor Black community near the Delta. Harmony's Black residents were organizing to enforce a desegregation order. MacDonald was one of the organizers, and she had already been hit with the bludgeons of racial capitalism: her house was fired at; her son was fired from his job; and the bank tried to foreclose on her mortgage. When Bell asked her how she could keep going, she responded “Derrick, I am an old woman. I lives to harass white folks.”

Without recognizing Bell's reverence for Black struggle, even against the seemingly insurmountable barrier of white supremacist capitalism and its buttresses in the law, it becomes impossible to understand why Bell declares Mrs. MacDonald triumphant. Bell's final line of his landmark essay says it all: if you remember her story, you will understand his message.

Andrew Hull, MSt (Oxon), PhD (Northwestern) is a 3L JD Candidate at Emory University School of Law, Dean's Teaching Fellow, and Editor-in-Chief of the Emory International Law Review.