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ADMINISTERED ENTITLEMENTS: COLLECTIVE BARGAINING TO AFFIRMATIVE ACTION
Published online by Cambridge University Press: 11 October 2021
Abstract
This essay tells the story of the development of two of the most significant and controversial entitlement programs in twentieth-century U.S. history—collective bargaining and affirmative action. It focuses on the nexus between them—how New Deal empowerment of labor unions contributed to racial discrimination, and thus fed the Great Society race-based programs of affirmative action. The evolving relationship between the courts and the bureaucracies is emphasized, particularly how the judiciary went from an obstacle to an enabler of the entitlement state.
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- © 2021 Social Philosophy & Policy Foundation. Printed in the USA
Footnotes
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History Department, Hillsdale College, [email protected].
References
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10 Individuals had no cause of action under the Wagner Act, which recognized only organizations of workers.
11 Landis was certainly referring to “discrimination” against union organizers or members, not racial discrimination by employers or unions, which the Board rather abetted.
12 “The Development of the Administrative Commission,” address at the Swarthmore Club, February 27, 1937, in Walter Gellhorn, Administrative Law: Cases and Comments (Chicago: Foundation Press, 1940), 18.
13 Most employers tried to establish “employee representation plans,” or “company unions,” to avoid outside (mostly American Federation of Labor) unions.
14 There were five cases, at the time generally called “the Labor Board Cases,” led by NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937).
15 Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 35–42.
16 This Act contained a provision (section 7[a]) meant to promote collective bargaining, and President Roosevelt established two labor boards to do so. Though ineffective, these boards established the principles that went into the Wagner Act.
17 The Court would accept legislative delegation to agencies if Congress provided an “intelligible principle” to guide the administrators—J. W. Hampton v. U.S., 276 U.S. 394 (1928), 409.
18 George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2003), 218.
19 49 Stat. 449 (1935), sec. 1.
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21 The dissenters brought these up, particularly in the case of Friedman v. Harry-Marks, 301 U.S. 76 (1937).
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29 See note 12, above.
30 304 U.S. 144 (1938).
31 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980) is the classic statement of the “democratic process” defense of judicial power. Works on “representative bureaucracy” extend it into administrative agencies.
32 Interior Secretary Harold Ickes and NLRB member James Reynolds claimed that Truman favored the Act, but vetoed it to placate the unions, knowing that his veto would be overridden. Martin Halpern, UAW Politics in the Cold War Era (Albany: SUNY, 1988), 204.
33 The combination of legislative, executive, and judicial powers in administrative agencies was the principal constitutional objection to the new bureaucratic state. That problem was addressed in the Administrative Procedure Act of 1946, but the NLRB was singled out for special treatment in Taft-Hartley.
34 This may have been because the Board interpreted the Taft-Hartley Act to suit itself—Sylvester Petro, How the NLRB Repealed Taft-Hartley (Washington: Labor Policy Association, 1958).
35 Sec. 10 (c).
36 They had been empowered earlier—due to their vital place in the economy and clear identity as engaging in interstate commerce—going back to the Erdman Act of 1898, the Adamson Act of 1916, and especially the Railway Labor Act of 1926.
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44 Hughes Tool Co., 147 NLRB 1573 (1964)—the “second Hughes Tool case.”
45 Sophia Z. Lee, The Workplace Constitution: From the New Deal to the New Right (New York: Cambridge University Press, 2014), 175. The Board held back its decision for fear that it would be interpreted this way—ibid., 150.
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63 This, of course, would run into Fifth and Fourteenth Amendment objections, such as those that had to be overcome to secure affirmative action.
64 An individual victim of anti-union discrimination had no private right to sue if the Labor Board rejected his claim.
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68 Sec. 703(a). The addition of “sex” to the traditional categories of “race, creed, color, and national origin” was a surprise, the work of Virginia Representative Howard W. Smith, a longtime foe of civil rights legislation. It is usually assumed that he offered the amendment as a “poison pill” to help defeat the bill, but he may have been seeking to protect white women, whom he figured would be dismissed to make way for blacks. Graham, Civil Rights Era, 136.
69 Sec. 703(j).
70 Congressional Record, 88th Cong., 2d Sess. (April 9, 1964), 7420; (June 4, 1964): 12723.
71 Sec. 703(h).
72 June 4, 1965, in Public Papers of the Presidents of the United States: Lyndon B. Johnson (Washington, DC: GPO, 1966), II: 635–40.
73 The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training (Washington, DC: Brookings, 1969), 93.
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75 Richard P. Nathan, Jobs and Civil Rights: The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training (Washington, DC: Brookings, 1969), 109–19; Graham, Civil Rights Era, 287–90. The Plan applied to six and at times seven specific crafts.
76 Contractors Association v. Shultz, 311 F. Supp. 1002 (1970).
77 Contractors Association v. Shultz, 442 F. 2d 159 (1971).
78 Graham, Civil Rights Era, 341–43.
79 The AFL-CIO did not oppose nondiscrimination provisions like Powell’s. The repeal of 14(b) failed even after the Civil Rights Act of 1964 had enacted one. Arguably, Title VII contained a provision (section 703[h]) to protect discriminatory union seniority systems—discussed below.
80 A. J. Thieblot, “The Fall and Future of Unionism in Construction,” Journal of Labor Research 22 (2001): 287; Bureau of Labor Statistics, Economic News Release, January 18, 2019.
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84 Blumrosen, Black Employment and the Law, 52. Arthur Fletcher brought Blumrosen to the OFCC when launching the Philadelphia Plan.
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89 These agreements were made under the auspices of the NLRB. After 1964, unions blamed management for the old segregation, and management blamed the unions.
90 Whitfield v. United Steelworkers, 156 F. Supp. 430 (1959).
91 This would allow blacks to take their accrued seniority into white jobs as vacancies arose. It did not permit them to displace incumbent whites—the more radical doctrine known as “freedom now.” See “Title VII, Seniority Discrimination, and the Incumbent Negro,” Harvard Law Review 80 (1967): 1268.
92 Quarles v. Philip Morris Co., 279 F. Supp. 505 (1968), 516.
93 The terms “disparate impact” and “disparate treatment” were coined in a 1976 legal treatise and adopted by the Supreme Court the next year. Michael Evan Gold, “Disparate Impact Is Not Unconstitutional,” Texas Journal on Civil Liberties and Civil Rights 16 (2011): 173.
95 401 U.S. 424 (1971). The Court would later trim its deference to the Commission. Theodore W. Wern, “Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second-Class Agency?” Ohio State Law Journal 60 (1999): Melissa Hart, “Skepticism and Expertise: The Supreme Court and the EEOC,” Fordham Law Review 74 (2006).
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99 United Steelworkers v. Weber, 443 U.S. 193 (1979). These quotas were not really “voluntary.” Though not imposed by a court, they were adopted in legally enforceable “consent decrees.”
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103 S. 2014, section 13, Congressional Record 137 (October 22, 1990): 16457.
104 105 Stat. 1071 (1991)
105 Graham, “The Great Society’s Civil Rights Legacy,” 376.
106 Some commentators claimed that Congress, by not repudiating disparate impact in 1972 amendments to the Civil Rights Act, had tacitly provided legislative consent—as if its failure to exercise a “legislative veto” validated bureaucratic policy. Congress also enacted racial set-asides for minorities in the 1977 Public Works Employment Act.
107 Mayer, With the Stroke of a Pen, 213; “Voters Narrowly Reject Affirmative Action in Washington State,” New York Times, November 13, 2019; Alexander Nieves, “California Voters Reject Affirmative Action Measure Despite Summer of Activism,” Politico, November 4, 2020.
108 Blumstein, “Doing Good the Wrong Way,” 934.
109 James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (New York: Cambridge University Press, 1978); cf. Adrian Vermuele, “What Legitimacy Crisis?” CATO Unbound, May 9, 2016.
110 Sharp, The Sometime Connection, 76.
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117 Gould, “Title VII of the Civil Rights Act at Fifty,” 399; Dobbin, Inventing Equal Opportunity, 227.