Union Program for Eliminating Discrimination

EDITOR'S NOTE.-On November 15, 1962, the President's Committee on Equal Employment Opportunity, represented by its chairman, Vice President Lyndon B. Johnson, signed joint statements with unions affiliated with the AFLCIO pledging to end union discrimination against minority groups. The 116 national unions (listed at the end of this article) and 300 directly chartered local unions represent about 11,000,000 workers. A sample Program for Fair Practices is presented below. A few of the pledges differed slightly from the sample. Procedures for measuring progress of the program are to be worked out by the Committee in cooperation with the AFL-CIO.

Union Pledge

We propose to cooperate with the Committee in attaining its goals of equal opportunity in all aspects of employment, tenure, terms, and conditions of employment, in work assignment, promotion, and transfer, without regard to race, creed, color, or national origin.

While the Committee's program is confined to employment under Federal Government contracts and to Federal employment, we shall continue to extend our union program for fair practices to all employment.

It is our purpose to give full effect within our ranks to the civil rights policy of the AFL-CIO to eliminate discrimination and unfair practices wherever they exist.

It is our policy to accept into our ranks as fellow unionists all eligible applicants for membership without regard to or indication of race, creed, color, or national origin.

It is our purpose to further equal opportunity in all union services and benefits, in employment, tenure, terms, and conditions of employment, in work assignment, promotion, and transfer, and in all aspects of work training.

We reaffirm our policy of accepting all eligible applicants for membership without regard to race,

creed, color, or national origin and of insuring for all such workers the full benefits of union organization without discrimination, segregation, separation, or exclusion of any kind.

We shall not charter any local unions in which membership would be separated on the basis of race, creed, color, or national origin.

If we should find evidence in any of our locals of separation, segregation, or exclusion on the basis of race, creed, color, or national origin, we would make every possible effort to end such segregation, separation, or exclusion with all possible speed.

Where local unions accept transfer applications from members of other locals, all such applications shall be accepted without discrimination because of race, creed, color, or national origin.

We shall seek agreement from management to write into joint apprenticeship training programs in which we participate a nondiscrimination clause in regard to admissions and conditions of employment of apprentices and shall see that this clause is administered in such a way as to give full and effective application of nondiscrimination throughout all such training.

We shall make a special effort within the framework of the international union constitution and policy to obtain agreement from employers to embody in all collective bargaining contracts with the union nondiscrimination clauses covering hire, tenure, terms, conditions of employment, work assignment, and advancement, and providing for effective administration and enforcement of such clauses.

We shall insist that each local union of this international union, seek management agreement that any facilities provided by it for the employees will not exclude or segregate on the basis of race, creed, color, or national origin.

It shall be our policy that our local unions, in their relationship with management, insist that all recalls, layoffs, overtime lists, work rosters, and assignments and all training programs are maintained and operated without discrimination because of race, creed, color, or national origin and that all workers covered by collective bargaining agreements with them have equal opportunity for promotion and transfer.

We shall assign to an executive officer or a national staff officer the duties of administration,

Significant Decisions in Labor Cases*

Labor Relations

Federal-State Jurisdiction. The Supreme Court of Missouri refused to invalidate a State law permitting State seizure and operation of a public utility when, in the opinion of the Governor, a strike or lockout would threaten to impair the operation of that utility so as to interfere with the public interest, health, and welfare. The Court rejected the arguments of the union that the State law was in conflict with the Labor Management Relations Act and deprived the workers of rights guaranteed by the Federal Constitution.

When it appeared that the employees of the Kansas City public transportation system were going to strike at midnight on November 13, 1961, the Governor, as authorized by the State KingThompson Act, ordered State seizure of all the transportation facilities and equipment of the transit company, 1 minute before the strike was to commence, to be operated for the use of the State. The strike went into effect as scheduled, in violation of the Missouri law. The State sought and obtained a permanent injunction, which the union. appealed.

The union relied heavily on a U.S. Supreme Court decision2 which invalidated the Wisconsin Public Utility Anti-Strike Act making unlawful any strike that would cause the interruption of an "essential public utility service." Whenever an impasse developed that threatened such interruption, the Wisconsin Employment Relations Board was empowered to appoint a conciliator to attempt a settlement of the dispute. If the conciliator's efforts failed, the Board was directed to select arbitrators whose decision would be final and binding. The Supreme Court held that Congress, by safeguarding the right of employees to strike except in certain activities during national emergencies (section 7 of the LMRA), had occupied this field and closed it to State regulation. The union contended that the King-Thompson Act,

like the Wisconsin statute so conflicts with the LMRA that it is rendered invalid.

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Rejecting the union's argument that the Wis consin and Missouri laws were similar, the Missour Supreme Court said that the similarities were superficial while the differences were fundamental The King-Thompson Act, unlike the Wisconsin statute, is not a "comprehensive code for the settlement of disputes between public-utility employers and employees" providing for compulsory bargaining. Rather, the Missouri law is an 'emergency" legislation, the purpose of which is to preserve community life and protect its citizens from disaster. The court pointed to the wellestablished right of a State to exercise the police power, except where the conflict between the Federal and State statutes cannot be reconciled, and cited its previous ruling3 that a strike which jeopardizes public health, safety, and welfare is not a protected activity under the LMRA. Although the entire statute was not subject to review in this action because of procedural reasons, the court adhered to its previous decision that the King-Thompson Act is not in conflict with the LMRA and is a constitutional exercise of State authority.

The court pointed out that employees of a public utility company assume an implied obligation upon entering into such employment to perform their duties in such a manner as will enable the utility to discharge its obligation to the public. Their employment is subject to the police power of the State in emergencies when it is necessary to protect the public health, safety, and welfare. Therefore, the employees do not have the right to strike against the State during State operation of the utility in an emergency.

Regarding the union's contention that the Missouri law abridged certain of the employees' rights under the U.S. Constitution, the court said that the issues were not before it for decision at

*Prepared in the U.S. Department of Labor, Office of the Solicitor. The cases covered in this article represent a selection of the significant decisions believed to be of special interest. No attempt has been made to reflect all recent judicial and administrative developments in the field of labor law or to indicate the effect of particular decisions in jurisdictions in which contrary results may be reached based upon local statutory provisions, the existence of local precedents, or a different approach by the courts to the issue presented. 1 Missouri v. Division 1287, Amalgamated Association of Street. Electric Rail way and Motor Coach Employes of America (Mo. Sup. Ct., Oct. 8, 1962). Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 383 (1951).

Missouri v. Local No. 8-6, Oil, Chemical and Atomic Workers International Union, 317 S. W. 2d 309 (Mo. Sup. Ct., 1958).

this time since they were not properly presented. Nevertheless, the court again approved a prior decision in which it had rejected the union's position on these issues.

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Antitrust Laws. The U.S. Supreme Court upheld " a Federal district court order to a union to terminate the membership of independent businessmen who had joined the union for the purpose of using its power to enforce an agreement in restraint of trade. The district court also had enjoined certain other practices found to be in violation of the Sherman Act.

Between 1954 and 1959, there were in Los Angeles County eight processors of yellow grease produced from waste grease resulting from the preparation of food. The processors purchased the waste grease either directly from large restaurants, hotels, and other institutions, in which case the grease was picked up by employees who were members of the union, or from grease peddlers. The latter were independent businessmen whose earnings as middlemen depended on the difference between the price they paid for the grease and the resale price less their operating costs.

In 1954, on the advice of the business agent of the union, most of the grease peddlers became members of the union for the purpose of increasing their profit margin. An agreement fixing the purchase and sale prices was made, to be enforced by union agents through the exercise or threatened exercise of union economic power in the form of strikes and boycotts against processors who dealt with nonunion grease peddlers. Accounts and territories were allocated to the peddlers by the union's business agent. From 1954 to 1959 this basic plan of price fixing and business allocation was effectively carried out as the few nonunion grease peddlers were eliminated from the market and the processors were coerced into compliance through threats of "union trouble."

The grease peddlers were treated as a separate group within the union, distinct from the employee members. They formed a special subdivision, which held separate meetings, was administered by the business agent who originated the plan,

• Ibid.

Los Angeles Meat and Provision Drivers Union, Local 626 v. United States (U.S. Sup. Ct., Nov. 19, 1962).

NLRB v. Hearst Publications, Inc., 322 U.8. 111 (1944).

and had a committee of grease peddlers to assist in enforcing the program.

The High Court held that a court of equity unquestionably has the power, in appropriate circumstances, to order the dissolution of a businessmen's association on finding that the association and its members had conspired to violate the antitrust laws. Both the Norris-LaGuardia Act and the Clayton Act provide safeguards against the use of the antitrust laws to stifle legitimate labor union activities. In this case, as the district court found, there was no job competition or economic interrelationship of any kind between the grease peddlers and the employee-members of the union. The case did not involve a legitimate union activity, nor did it grow out of a labor dispute, both of which have statutory protection. Rather, as the district court had found, what was involved was "an illegal combination between businessmen and a union to restrain commerce"a situation where businessmen attempted to immunize themselves against the antitrust laws by simply calling themselves a labor union. Neither the Norris-LaGuardia Act nor the labor-exemption provisions of the Clayton Act protect such an arrangement from dissolution. The High Court added that if the situation should change in the future, the district court will be able to amend its decision.

In a concurring opinion, Justices Goldberg and Brennan agreed with the conclusion of the majority that the union device was used to effect a "concededly illegal scheme" to control the grease market. However, they wanted to make it clear that legitimate union interests may extend beyond mere direct job and wage competition, and the majority opinion should not be construed as meaning that "members may be expelled from a union when the pursuit of genuine labor objectives has collaterally resulted in transgressions of the antitrust laws." They noted with approval that the district court would retain jurisdiction to amend its decree if the circumstances should change.

Mr. Justice Douglas disagreed with his colleagues and would have reversed the district court's order. He noted that the Supreme Court had in the past recognized persons as "employees" who under the common law would be independent contractors. Further, he stated that a union has a "legitimate interest in the conditions in the industry which increase or reduce employ

ment opportunities or labor's rewards." Although illegal acts were committed by the peddler members and the union, against which antitrust remedies could be applied, Justice Douglas held that the case really involved a "labor dispute" within the meaning of the Norris-LaGuardia Act and the act's provision forbidding Federal courts. to enjoin anyone from "becoming or remaining a member of any labor organization" was applicable here. He believed, therefore, that the sanction applied by the district court was inappropriate.

Plant Closure. Refusing to enforce an order of the National Labor Relations Board, the U.S. Court of Appeals for the First Circuit ruled that an employer retains the prerogative to close his business if economic conditions compel him to do so, regardless of whether there is a union on the scene. The court disagreed with the Board's finding of an antiunion motivation in the plant closing on the part of the employer.

The company, which was engaged in the manufacture of webbing in Rhode Island, began to lose customers because of a high incidence of defective material. It decided to place its weavers on an hourly rate basis after concluding that the defective work was due to its piece-rate method of paying its workers. The weavers, dissatisfied. with the hourly wage offered them, failed to report to work and the company was forced to operate on a limited basis with employees from other divisions. The weavers asked a union to represent them, and the union was later certified as their bargaining representative by the State Labor Relations Board.

The company advised the union at a negotiation meeting that it had lost several accounts, including its largest one, which it would not be able to regain and, consequently, it was forced to liquidate its operations. At the meeting, the company and the union discussed the number of employees needed to "run out" the existing work, their rate of pay, and their seniority. When the company refused to change its decision after further negotiations, the union. agreed to the terms for "running out" the work. However, the union later advised the company that it had filed unfair labor practices charges with the NLRB and proposed a contract. At subsequent meetings, they discussed both the charges and the contract, but the company would

agree to sign an agreement only for the period it was to remain in business.

The trial examiner recommended that the charges be dismissed because he found the shutdown to have been dictated by economic reasons free of any antiunion motivation. The Board, however, disagreed with this opinion and held that the employer had terminated his operations and discharged his employees in reprisal for their union activities and to avoid bargaining with the union.

The court ruled that "a businessman still retains the untrammeled prerogative to close his enterprise when in the exercise of a legitimate and justified business judgment he concludes that such a step is either economically desirable or economically necessary. This prerogative exists quite apart from whether or not there is a union on the scene."

The court further noted that there was no prior history to indicate the employer's opposition or hostility toward the union. The company had evidenced financial distress before the advent of the union and could reasonably expect the union's arrival to affect its precarious economic condition. Its expectations were borne out when, at the first negotiation session, a union representative stated that the workers would not return to work for the wages previously offered.

Moreover, the company's decision to cease operations was announced at one of the negotiation sessions and the details of the "run-out" work were discussed with the union. Therefore, there was no unilateral action taken by the employer with respect to subjects which he was required to consult with the union. The court concluded that the Board's finding that the shutdown was a subterfuge to avoid dealing with the union was not supported by substantial evidence on the record considered as a whole.