Hotspots in a cold war: The NAACP's postwar workplace constitutionalism, 1948-1964

Law and History Review

Volumn 26, Issue 2, 2008, Pages 327-376

  Lee, Sophia Z ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 64949125327     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0738248000001346     Document Type: Review

References (323)

1. NAACP Annual Convention Resolutions, June 25, 1955, Randolph Boehm, August Meier, and John H. Bracey, Jr., eds., Papers of the NAACP, Supplement to Part 1, 1951-1955 (Bethesda: University Publications of America [hereafter cited as UPA], 1987), microfilm, reel 12. The PCGC was not a congressionally created agency but an executive body charged with implementing non-discrimination clauses in government contracts. I refer to both the PCGC and NLRB as agencies for simplicity's sake
2. Executive Office Reports, June 13,1955, ibid., reel 2
3. "NAACP Membership Unanimous on Yellow Cab Boycott," June 6,1955, press release, Bracey and Meier, eds., Papers of the NAACP, Part 13, Series A: Subject Files on Labor Conditions and Employment Discrimination (Bethesda: UPA, 1991), microfilm, reel 11
4. Plessy v. Ferguson, 163 U.S. 537 (1896)
5. Civil Rights Cases, 109 U.S. 3 (1883). The Fourteenth Amendment limits state governments. By the mid-twentieth century, the Fifth Amendment incorporated the Fourteenth Amendment's equal protection guarantees, but against the federal government. This article uses the general term " constitutional" to refer to claims that sought to surmount these amendments' state-action barrier
6. "NLRB Gets Specific Job Bias Charges," June 1,1955, press release, Bracey and Meier, Part 13, Series A, reel 13
7. Herbert Hill to William Pollard and Woodrow Redo, June 7, 1955, ibid
8. William Anderson and Richard Fulton to Hill, ibid., reel 11
9. Hughes Tool, 147 NLRB 1573 (1964)
10. Shelley v. Kraemer. 334 U.S. 1 (1948). The 1964 Civil Rights Act, among other things, prohibited discrimination by employers, unions, and in public accommodations. Civil Rights Act of 1964, 78 Stat. 241 et seq. (1964)
11. On Congress's view that only the Commerce Clause provided established legal authority for the Act, see Leslie A. Carothers, The Public Accommodations Law of 1964: Arguments, Issues and Attitudes in a Legal Debate (Northampton, Mass: Smith College, 1968), 56-57
12. Robert D. Loevy, To End All Segregation: The Politics of the Passage of the Civil Rights Act of 1964 (Lanham, Md.: UPA, 1990), 49-50. Hughes Tool also appeared to put the Board out ahead of the attorney general. In the fall of 1963, Attorney General Robert Kennedy told the House Judiciary Committee that he did not think it would be unconstitutional for a state to license or otherwise sanction a business that discriminated
13. House Committee on the Judiciary, Civil Rights Act: Hearings on H.R. 7152, 88th sess., 1963, 269-2700
14. For the Supreme Court's divided views on the scope of Shelley's reach, compare Justice Douglas's concurrence and Justice Black's dissent in Bell v. Maryland, 378 U.S. 226, 257-59, 326-33 (1964), decided a little over a week before the Board's Hughes Tool decision
15. Brown v. Board of Education, 347 U.S. 483 (1954)
16. Risa Lauren Goluboff, The Lost Promise of Civil Rights (Cambridge: Harvard University Press, 2007)
17. Goluboff, "'Let Economic Equality Take Care of Itself: The NAACP, Labor Litigation, and the Making of Civil Rights in the 1940s," UCLA Law Review 52 (June 2005): 1395
18. Goluboff, "The Thirteenth Amendment and the Lost Origins of Civil Rights," Duke Law Journal 50 (2001): 1609
19. Kenneth W. Mack, "Rethinking Civil Rights Lawyering and Politics in the Era before Brown," Yale Law Journal 115 (2005): 258
20. Scholars who argue that the NAACP's labor litigation ended with the Cold War's onset include Goluboff, Lost Promise
21. Goluboff,"'Let Economic Equality'"
22. Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (New York: Oxford University Press, 1994), 70-80, 116. Goluboff's important work explores topics similar to this article's but comes to quite different conclusions. Goluboff argues that by the late 1940s NAACP lawyers had, for various reasons, chosen to forego employment related litigation and that by 1950 these cases had "disappeared" from its litigation agenda. In particular, she argues that they ceased seeking to extend the state-action doctrine to reach unions and workplaces
23. Goluboff, Lost Promise, 12, ch. 8, especially 235
24. Goluboff, "'Let Economic Equality,'" 1456-72, 1476-78. Jack Greenberg argues that NAACP workplace civil rights litigation was born in the 1960s
25. Greenberg, Crusaders in the Court: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (New York: Basic Books, 1994), 412-29. Recent works recognize that the NAACP continued to pursue economic rights in the 1950s. However, they do not address the NAACP's constitutional litigation
26. Nancy MacLean, Freedom Is Not Enough: The Opening of the American Workplace (Cambridge: Harvard University Press, 2006), ch. 2
27. Paul Moreno, From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, 1933-1972 (Baton Rouge: Louisiana State University Press, 1997), chs. 5-7
28. Gilbert Jonas, Freedom's Sword: The NAACP and the Struggle against Racism in America, 1909-1969 (New York: Routledge, 2005), ch. 9
29. This contradicts labor historians' argument that rights-based legal action undermined worker collective action. See, for example, Nelson Lichtenstein, State of the Union: A Century of American Labor (Princeton: Princeton University Press, 2002)
30. Reuel E. Schiller provides a more contingent account: "From Group Rights to Individual Liberties: Post-War Labor Law, Liberalism, and the Waning of Union Strength," Berkeley Journal of Employment and Labor Law 10 (1999): 1. Civil rights labor histories also trouble this dichotomy
31. Robert Rodgers Korstad, Civil Rights Unionism: Tobacco Workers and the Struggle for Democracy in the Mid-Twentieth-Century South (Chapel Hill: University of North Carolina Press, 2003), 7
32. MacLean, Freedom Is Not Enough
33. Eric Arnesen, Brotherhoods of Color: Black Railroad Workers and the Struggle for Equality (Cambridge: Harvard University Press, 2001)
34. Penny Von Eschen, Race against Empire: Black Americans and Anticolonialism, 1937-1957 (Ithaca: Cornell University Press, 1997)
35. Carol Anderson, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955 (Cambridge: Cambridge University Press, 2003)
36. Martha Biondi, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City (Cambridge: Harvard University Press, 2003)
37. Robert Korstad and Nelson Lichtenstein, "Opportunities Found and Lost: Labor, Radicals, and the Early Civil Rights Movement," Journal of American History 75 (1988): 805, 808 (hereafter cited as JAH)
38. On the Cold War's general deradicalization of civil rights, see Jacquelyn Dowd Hall, "The Long Civil Rights Movement and the Political Uses of the Past," JAH 91 (March 2005): 1248-50
39. Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2000), 13
40. Glenda Elizabeth Gilmore, Defying Dixie: The Radical Roots of Civil Rights (New York: W. W. Norton & Co., 2008), ch. 9
41. Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (Princeton: Princeton University Press, 1996), 156. However, historians are beginning to recover exceptions to the Cold War's conservatizing effects on national and local civil rights advocates
42. Thomas F. Jackson, From Civil Rights to Human Rights: Martin Luther King, Jr., and the Struggle for Economic Justice (Philadelphia: University of Pennsylvania Press, 2007)
43. Judy Kutulas, The American Civil Liberties Union and the Making of Modern Liberalism, 1930-1960 (Chapel Hill: University of North Carolina Press, 2006)
44. For the multiple factors that shut black workers out of jobs and unions, see Sugrue, Origins of the Urban Crisis, 91-123. Historians are beginning to recover the NAACP's postwar direct action against racially exclusive customs
45. Lizabeth Cohen, A Consumers' Republic: The Politics of Mass Consumption in Postwar America (New York: Alfred A. Knopf, 2003), ch. 4
46. Thomas Sugrue, "Affirmative Action from Below: Civil Rights, the Building Trades, and the Politics of Racial Equality in the North, 1945-1969," JAH (June, 2004): 145. Better-known courtroom challenges to the state-action doctrine include the NAACP's white-primary, racially restrictive-covenant, and sit-in cases
47. Tushnet, Making Civil Rights, 81-115
48. Greenberg, Crusaders, chs. 20, 23
49. The classic account of the road to Brown is Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Knopf, 1975). Mark V. Tushnet emphasizes the ways in which this litigation was orchestrated according to the interests of the national NAACP office
50. Tushnet, The NAACP's Legal Strategy against Segregated Education, 1925-1950 (Chapel Hill: University of North Carolina Press, 1987). Risa Goluboff argues that by the 1950s, the NAACP's campaign against Plessy and segregated education targeted only state-sanctioned discrimination, stigmatic, not material, harms, and pursued the single goal of ending formal racial classifications
51. Goluboff, Lost Promise, 14-15, 228-35, 243-45, 251-52. She also describes the school-segregation litigation as reflecting and being aided by the NAACP Legal Defense Fund's (LDF) increasing separation from the political work of the NAACP
52. Legal scholars who correct the way Brown's present-day meaning distorts civil rights historiography include Goluboff, Lost Promise, 4-5
53. Mack, "Rethinking Civil Rights Lawyering"; Reva B. Siegel, "Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown," Harvard Law Review 117 (2004): 1470. Risa Goluboff and Kenneth Mack focus on the period preceding Brown. However, Reva Siegel has demonstrated that the meaning and sweep of Brown remained up for grabs for decades following the Court's landmark decision. This prolonged process indicates the value of extending Goluboff and Mack's work, demonstrating that the workplace reach of pre-Brown civil rights constitutionalism persisted in new forms and unexplored fora during and after the LDF's successful assault on Jim Crow laws
54. Cases and Materials on Employment Discrimination, ed. Michael J. Zimmer et al. (New York: Aspen Publishers, 2003)
55. Maclean, Freedom Is Not Enough
56. Timothy Minchin, The Color of Work: The Struggle for Civil Rights in the Southern Paper Industry, 1945-1989 (Chapel Hill: University of North Carolina Press, 2001)
57. Judith Stein, Running Steel, Running America: Race, Economic Policy, and the Decline of Liberalism (Chapel Hill: University of North Carolina Press, 1998)
58. Moreno, From Direct Action, discusses postwar fair employment statutes but treats them as precursors to Title VII
59. Michael R. Botson, Jr.'s Labor, Civil Rights, and the Hughes Tool Company (College Station: Texas A&M University Press, 2005)
60. Paul Frymer's Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton: Princeton University Press, 2008), especially ch. 5
61. and Frymer's "Racism Revised: Courts, Labor Law, and the Institutional Construction of Racial Animus," American Political Science Review 99 (2005): 373 are welcome exceptions
62. The most comprehensive history of civil rights constitutionalism is Michael Klarman's magisterial From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004). While Klarman disputes court-centric accounts of civil rights change, arguing that courts followed rather than led the civil rights revolution, he looks only to the Supreme Court for constitutional law and separates his analyses of doctrine and politics. Goluboff incorporates the NAACP's wartime NLRB cases, but she is primarily interested in its court-based constitutional litigation. Goluboff also recognizes that the NAACP's Labor Department remained active on employment issues into the 1950s, but does not consider this part of the NAACP's civil rights constitutionalism or of LDF's agenda. In addition, while she highlights the previously overlooked work of the Department of Justice's Civil Rights Section, in terms of non-governmental actors, she focuses exclusively on the litigation strategy of LDF and Thurgood Marshall
63. Goluboff, Lost Promise, 226, 260
64. Goluboff, "Let Economic Equality," 1396, n 10; 1471
65. Goluboff, "The Thirteenth Amendment."
66. Mack, "Rethinking Civil Rights Lawyering," 263-64. This article attributes the labor advocacy it recounts to the NAACP generally. This best captures the cooperation these cases involved among the NAACP's Labor Department, National Legal Committee, LDF, and attorneys affiliated with its regional and local offices. After 1956, the NAACP's newly distinct General Counsel's office supplanted LDF's role in this litigation
67. Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)
68. Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999)
69. William E. Forbath, "The New Deal Constitution in Exile," Duke Law Journal 51 (2001): 165
70. Robert Post and Reva B. Siegel, "Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act," Yale Law Journal 112 (2003): 1943
71. Jonas, Freedom's Sword, 240-53
72. National Labor Relations Act § 1, ch. 395, 74 Stat. 450 (1935). For the NLRA's passage, see James A. Gross, Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law (Albany: State University of New York Press, 1981)
73. Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (Cambridge: Cambridge University Press, 1985), 103-47. New Deal economic regulation was hardly unprecedented. There was a long tradition of state, local, and, by the twentieth century, federal oversight of economic actors
74. Morton Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900-1933 (Cambridge: Harvard University Press, 1990)
75. William Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996). However, the New Deal marked a sea-change in the scope and depth of economic regulation
76. For the scholarly debate on whether the New Deal was a legal revolution, see Laura Kalman, "Law, Politics, and the New Deal(s)," Yale Law Journal 108 (1999): 2165
77. African Americans' decades-old labor activism accelerated in the 1930s, nurtured by Popular Front politics. Arnesen, Brotherhoods of Color, 85-86
78. Michael Denning, The Cultural Front: The Laboring of American Culture in the Twentieth Century (London: Verso, 1997)
79. Gilmore, Defying Dixie
80. Michael Honey, Southern Labor and Black Civil Rights: Organizing Memphis Workers (Urbana: University of Illinois Press, 1993), 67-144. World War II gave this activism a further boost
81. Korstad, Civil Rights Unionism
82. Korstad and Lichtenstein, "Opportunities Found and Lost," 786
83. Bruce Nelson, "Organized Labor and the Struggle for Black Equality in Mobile during World War II," JAH 80 (1993): 952. Popular Front politics also affected civil rights lawyering
84. Kenneth W. Mack, "Law and Mass Politics in the Making of the Civil Rights Lawyer, 1931-1941," JAH 93 (June 2006): 37
85. Herbert Hill, Black Labor and the American Legal System: Race, Work, and the Law (Madison: University of Wisconsin Press, 1977), 107
86. Steele v. Louisville & Nashville R. Co., 323 U.S. 192 (1944). The Court did not rule that the Constitution directly bound labor agencies or unions, instead reasoning that the labor statute would be unconstitutional unless it was interpreted to implicitly impose the duty of fair representation. Justice Frank Murphy, for one, was unsure of this duty's constitutional status. His concurrence noted that Congress could not authorize a union to ignore African-American workers' constitutional rights without violating the Fifth Amendment. "If the Court's construction of the statute rests upon this basis," he wrote, "I agree. But I am not sure that such is the basis."
87. Steele, 208-9
88. See Deborah C Malamud, "The Story of Steele v. Louisville & Nashville Railroad: White Unions, Black Unions, and the Struggle for Racial Justice on the Rails," in Labor Law Stories, ed. Laura J. Cooper and Catherine L. Fisk (New York: Foundation Press, 2005) for a nuanced history of the case
89. Larus & Bro. Co., Inc., 62 NLRB 1075, 1082 (1945)
90. Bethlehem-Alameda Shipyard, Inc., 53 NLRB 999, 1015-16 (1943)
91. Carter Manufacturing Co., 59 NLRB 804 (1944)
92. Atlanta Oak Flooring Co., 62 NLRB 973 (1945)
93. General Motors Corp., 62 NLRB 427 (1945)
94. Larus, 1075
95. Marian Wynn Perry to NLRB, January 30, 1948, Bracey and Meier, eds., Part 13, Series C: Legal Department Files on Labor (Bethesda: UPA, 1991), microfilm, reel 7
96. Legal Department Report, February, 1948, Boehm and Meier, eds., Papers of the NAACP, Part 1: Meetings of the Board of Directors, Records of Annual Conferences, Major Speeches, and Special Reports, 1909-1950 (Bethesda: UPA, 1982), microfilm, reel 7
97. Perry to Thurgood Marshall, Sept. 17, 1948, in Bracey and Meier, eds., Papers of the NAACP, Part 13, Series A: Subject Files on Labor Conditions and Employment Discrimination (Bethesda: UPA, 1991), microfilm, reel 14
98. Raiding involves one union luring away the members of a competitor union. For examples of all-white unions' raids, see Perry to NLRB, January 30, 1948, Bracey and Meier, Part 13, Series C, reel 7
99. Perry, February 5,1948, ibid
100. Robert H. Zieger, The ClO, 1935-1955 (Chapel Hill: University of North Carolina Press, 1995), 253
101. Taft-Hartley Act, 61 Stat. 136 (1947)
102. On the Taft-Hartley Act, see James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994 (Philadelphia: Temple University Press, 1995)
103. Tomlins, The State and the Unions
104. Nelson Lichtenstein, "Taft Hartley: A Slave-Labor Law?" Catholic University Law Review (Spring 1998): 763
105. On the Southern Democrat-Republican alliance and its stranglehold on labor and civil rights policy, see Ira Katznelson et al., "Limiting Liberalism: The Southern Veto in Congress, 1933-1950," Political Science Quarterly 108 (Summer 1993): 283
106. Quote is from Perry to Thurgood Marshall, Sept. 17, 1948, Bracey and Meier, Part 13, Series A, reel 14
107. William H. Hastie, "The Government's Responsibility for Civil Rights," July 13, 1949, speech, Boehm and Meier, Part 1, reel 12
108. 43rd Annual Convention Resolutions, June 28, 1952, Boehm, Meier, and Bracey, eds., Supplement to Part 1, 1951-1955, reel 5
109. On anti-communism and civil rights, see note 9 above and Jeff Woods, Black Struggle, Red Scare: Segregation and Anti-Communism in the South, 1948-1968 (Baton Rouge: Louisiana State University Press, 2004)
110. On anti-communism and unions, see Harvey Levenstein, Communism, Anticommunism and the ClO (Westport: Greenwood, 1981)
111. Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998)
112. Annual Convention Records, June 26, 1948, Boehm and Meier, Part 1, reel 12
113. Annual Convention Records, June 23,1950, ibid
114. Statements that the NAACP was anti-union discrimination, not anti-union, include Clarence Mitchell, July 14, 1949, Boehm and Meier, Part 1, reel 12
115. Charles Hamilton Houston, July 14, 1949, ibid
116. Walter White, June 1950, ibid
117. For the NAACP's shift from suspecting unions to embracing them, see Goluboff, "'Let Economic Equality,'" 1404-7, 1467-71. Mack argues that civil rights attorneys were already focused on the twin goals of fighting union discrimination and fostering cross-class alliances in the 1930s
118. Mack, "Rethinking Civil Rights Lawyering." Nelson, Divided We Stand, 215
119. Hill, n.d., Bracey and Meier, Part 13, Series A, reel 20
120. Lucille Black to White, March 31, 1949, ibid. Hill's union campaign raised over $11,600 in its first eight months
121. Hill to Gloster Current, Sept. 23,1949, ibid
122. Hill, Nov. 1949, ibid
123. This was over four times Hill's annual salary. Roy Wilkins to Mrs. Waring, April 14, 1949, ibid
124. Quote from Herbert Hill to Wilkins, ibid
125. For union disfavor of legal action, see Nelson, Divided We Stand, 122, 125
126. For representative NAACP resolutions, see Annual Convention Records, June 23, 1950, Boehm and Meier, Part 1, reel 12
127. Annual Convention Records, June 26, 1956, Bracey and Meier, eds., Papers of the NAACP, Supplement to Part 1, 1956-1960 (Bethesda: UPA, 1991), microfilm, reel 4
128. Quotes are from the text of a 1954 workshop on legal strategies for combating employment discrimination. Unauthored, n.d. [1954], manuscript, "Oil Workers" Folder, box 8, part III-J, National Association for the Advancement of Colored People Records, Library of Congress, Manuscripts Division, Washington, D.C. (hereafter cited as NAACP Records) (year of undated sources derived from the procedural posture of cited cases)
129. For George Weaver's work for the CIO and how his and other CIO officers' anti-communism shaped and constrained the CIO's civil rights efforts, see Stevenson F. Marshall, Jr., "Challenging the Roadblocks to Equality: Race Relations and Civil Rights in the CIO, 1935-1956" (unpublished manuscript, 1991) http://eric.ed.gov (May 21, 2007)
130. On the devastating effects the CIO's leftist expulsions had on African-American labor, see Gerald Home, Red Seas: Ferdinand Smith and Radical Black Sailors in the United States and Jamaica (New York: New York University Press, 2005)
131. Frymer, Black and Blue, 62-63
132. For the elaborate steps NAACP attorneys took to work problems out within non-Communist unions prior to pursuing court action, see U. Simpson Tate to Hill, December 11, 1953, "Labor Cases-Texas, 1953-55" Folder, box 346, part II-A, NAACP Records
133. "Work of the National Office," April 16, 1946, Bracey and Meier, eds., Papers of the NAACP, Part 18: Special Subjects, 1940-1955, Series A: Legal Department Files (Bethesda: UPA, 1994), microfilm, reel 7
134. Unauthored, n.d. [1954], manuscript, "Oil Workers" Folder, box 8, part III-J, NAACP Records
135. Executive Orders 9980, 9981 (1948)
136. Executive Order 10308 (1951)
137. White, Nov. 1951, Boehm, Meier, and Bracey, Supplement to Part 1, 1951-1955, reel 2
138. White, March 1951, ibid
139. Hill to Henry Moon, October 22, 1952, Part 13, Series A, reel 19
140. Executive Office Reports, May 12, 1952, ibid
141. Larus, 1082
142. Atlanta Oak, 975
143. For instance, the Board ordered an election for a union that excluded African-American workers from membership in Witchita Falls Foundry & Machine Co., 69 NLRB 458 (1946)
144. General Motors, 431 (1945)
145. Waterfront Employers Ass'n of the Pacific Coast, 71 NLRB 121, note 7 (1946)
146. Taft-Hartley Act, 61 Stat. 136 (1947), sec. 8
147. Plywood-Plastics Corp., 85 NLRB 265, 265 (1949)
148. See also Norfolk Southern Bus Corp., 76 NLRB 488,489 (1948)
149. Texas & Pacific Motor Transport Corp., 77 NLRB 87,89 (1948)
150. Veneer Products, Inc., 81 NLRB 492 (1949)
151. Plywood-Plastics; Clarence Mitchell, July 14, 1949, Boehm and Meier, Part I, reel 12
152. Hill to Current, October 21, 1949, Bracey and Meier Part 13, Series A, reel 20
153. "Mass Rally," October 26, 1949, ibid
154. Hill to Current, February 2, 1951, ibid
155. Jack Greenberg to Josephine Peters, June 19, 1950, ibid
156. Hill to A. Maceo Smith, February 2, 1953, ibid
157. Hill to Smith, ibid
158. Ibid
159. Legal Department Report, May 1953, ibid
160. Legal Department Report, June 1-15 1953, ibid
161. Marshall and Robert L. Carter to Lawyers' Conference Participants, memo, June 12, 1953, ibid., reel 7
162. unauthored, n.d. [1954-1955], manuscript, "Oil Workers Background Information, 1954, n.d." Folder, box J-8, part III, NAACP Records
163. Robert L. Carter, A Matter of Law: A Memoir of Struggle in the Cause of Equal Rights (New York: The New Press, 2005). Risa Goluboff notes that the NAACP and LDF increased their organizational separation in 1952, a move she argues further contributed to LDF and the NAACP's abandonment of workplace litigation and the NAACP's relegation of economic inequality to its political advocacy
164. Lost Promises, 226, 237. LDF's research and workshops on employment discrimination in 1953 suggest its separation from the NAACP did not end its interest in these claims. Furthermore, LDF attorneys and the NAACP political staff's concerted and coordinated efforts to translate these theories into action demonstrate that LDF's move also did not rend the NAACP's political and legal pursuits
165. Report of the Committee on Discrimination in Employment, n.d. [1953], manuscript, "Oil Workers Background Information, 1954, n.d." Folder, box 8, part III-J, NAACP Records
166. Introduction, n.d. [1953], ibid
167. unauthored, n.d. [1954-1955], manuscript, ibid
168. For the central role the Constitution played in duty-of-fair- representation claims and reasoning during this period, see Sophia Z. Lee, "'Almost Revolutionary': Race, Labor, and Administrative Constitutionalism, 1935-1964" (paper presented at the Yale Law Women Works-in-Progress Series, Yale Law School, April, 2005). The NAACP attorneys assembling these arguments seemed conflicted about the Constitution's role in the duty of fair representation. One document asserted that the duty was merely like a constitutional right while another argued that it was a constitutional right
169. Compare Report of the Committee on Discrimination in Employment, n.d. [1953], manuscript, "Oil Workers Background Information, 1954, n.d." Folder, box 8, part III-J, NAACP Records with Introduction, n.d. [1953], ibid
170. See discussion of the NAACP and CIO's efforts to have unions' discriminatory membership practices and Board certification of such unions declared unconstitutional above at note 20. Williams v. Yellow Cab Co. of Pittsburgh, Pa., 200 F.2d 302 (3rd Cir., 1953)
171. Introduction, n.d. [1953], "Oil Workers Background Information, 1954, n.d." Folder, box 8, part III-J, NAACP Records; Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768 (1952)
172. Unauthored, n.d. [1954-1955], manuscript, "Oil Workers Background Information, 1954, n.d." Folder, box 8, part III-J, NAACP Records
173. Annual Report of Branch Activities, April 19,1954, "Houston, TX, 1954" Folder, box 195, part II-C, NAACP Records (typographical errors corrected)
174. "Major Trade Unions," Annual Convention Records, June 18, 1953, ibid., reel 8
175. Patrick E. Gorman, Annual Convention Records, June 25, 1953, ibid
176. Charles C. Webber, Annual Convention Records, June, 1953, ibid
177. Annual Convention Resolutions, June 27, 1953, Boehm, Meier, and Bracey, ibid., reel 6
178. On the NAACP's anti-communism during the 1950s, see Jonas, Freedom's Sword, ch. 5
179. Hill to White, Oct. 6, 1953, Bracey and Meier, Part 13, Series A, reel 20
180. Holt v. Oil Workers International Union, No. 430-707, complaint, District Court, Harris County, Texas (January 12, 1954), 4. Risa Goluboff has noted that substantive due process claims, like this one by King, persisted long after the New Deal supposedly interred them
181. Risa L. Goluboff, "Deaths Greatly Exaggerated," Law and History Review 24 (Spring 2006): 201
182. George L. P. Weaver to Carter, March 5, 1954, Bracey and Meier, Part 13, Series C, reel 4
183. Carter to Weaver, March 23, 1954, "Labor: Holt et al. v. Oil Workers International Union, 1954" Folder, box 89, part II-B, NAACP Records
184. Syres v. Oil Workers International Union, Local 23, May 25, 1954
185. Bracey and Meier, Part 13, Series C, reel 4. Oral histories suggest that Brown may have made interracial organizing more difficult but also inspired legal action to integrate jobs
186. Michael Honey, Black Workers Remember: An Oral History of Segregation, Unionism, and the Freedom Struggle (Berkeley: University of California Press, 1999), 136, 150-54
187. Horace Huntley and David Montgomery, eds., Black Workers' Struggle for Equality in Birmingham (Urbana: University of Illinois Press, 2004), 19. This fits Michael Klarman's thesis about the decision's impact
188. Klarman, From Jim Crow to Civil Rights, 377, 381
189. Elizabeth to Hill, June 25, 1954, Bracey and Meier, Part 13, Series A, reel 20
190. Hill to Leonard P. Avery, July 13, 1954, "Labor Cases: Oil Industries, 1945-55" Folder, box 345, part II-A, NAACP Records
191. see also Hill to U. Simpson Tate, July 12, 1954, Bracey and Meier, Part 13, Series A, reel 13
192. Daniel E. Byrd to Carter, n.d., "PCGC, Complaint to, 1954-55" Folder, box 9, part III-J, NAACP Records
193. Herbert Hill o Roy Wilkins, September 15, 1954, memo, Part 13, Series A. reel 20
194. Oil Workers International Union, January 13, 1955, motion and brief, "Syres v. Oil Workers lnt'l Union, Local 23, 1955" Folder, box 2337, part V, NAACP Records
195. Hill to White, Sept. 3, 1954, Bracey and Meier, Part 13, Series A, reel 13
196. Hill to Wilkins, Sept. 14, 1954, ibid., reel 20
197. Hill to Lawrence H. Conley, Oct. 19, 1954, ibid., reel 13
198. Hill to Carter, Nov. 17, 1954, ibid
199. Hill to Moon, February 1, 1955, Bracey and Meier, Part 13, Series A, reel 20
200. Hill to Wilkins et al., March 2, 1955, ibid., reel 13
201. Hill to White, Sept. 3, 1954, Part 13, Series A, reel 13
202. The PCGC charges addressed discrimination at Esso Standard Oil Corp., Carbide and Chemical Co., Lion Oil Co., and Cities Service Refining Corp. Carter and Marshall, n.d. [1955], complaint, "PCGC, Complaint to, 1954-55" Folder, box 9, part III-J, NAACP Records
203. LDF, June 1, 1955, Bracey and Meier, Part 13, Series A, reel 20
204. Legal Department Report, June-Aug., 1955, Boehm, Meier, and Bracey, Supplement to Part 1, 1951-1955, reel 2. Unfortunately no copies of the NLRB petitions appear to exist either in the NAACP's papers at the Library of Congress or in the NLRB's papers at the National Archives. The substance of the legal claims is derived from the NAACP's statements, its prior NLRB petitions, and the legal theories it developed in advance of its claims
205. Carter and Marshall, n.d. [1955], complaint, "PCGC, Complaint to, 1954-55" Folder, box 9, part III-J, NAACP Records
206. Legal Department Report, June-Aug., 1955, ibid
207. Syres v. Oil Workers Intern. Union, Local No. 23, 223 F.2d 739 (5th Cir., 1955) (Rives, J., dissenting)
208. William Anderson and Richard J. Fulton to Hill, June 25, 1955, Bracey and Meier, Part 13, Series A, reel 11
209. Hill to Lt. Spinella, June 29, 1955, ibid
210. Hill to Pope & Talbot, Inc., June 29, 1955, ibid
211. Fulton to Hill, July 1, 1955, ibid
212. Anderson and Fulton to Hill, July 11, 1955, ibid
213. Fulton to Hill, July 17, 1955, ibid
214. Hill to Franklin H. Williams, July 28, 1955, ibid
215. The Seafarers was founded in 1938. It incorporated the International Seamen's Union and the Sailors' Union of the Pacific, whose collective history of nativism and racial exclusion stretched back into the nineteenth century. Bruce Nelson, Workers on the Waterfront: Seamen, Longshoremen, and Unionism
216. Labor Secretary Report, March 1, 1947, Bracey and Meier, Part 13, Series A, reel 9
217. Executive Office Reports, July-Aug. 1951, ibid
218. Pacific Maritime Ass'n, 110 NLRB 1647 (1954). Branches were required to notify the state conference before bringing legal action. Annual Convention Records, June 27, 1953, Boehm, Meier, and Bracey, Supplement to Part 1, 1951-1955, reel 6
219. The San Francisco branch ignored this policy. Williams to White et al., January 31, 1955, Bracey and Meier, Part 13, Series A, reel 11
220. Williams to Ed Turner, Nov. 24, 1954, ibid
221. Williams to White et al., January 31, 1955, ibid
222. Williams to White et al., February 8, 1955, ibid
223. Williams to Wilkins, February 11, 1955, ibid
224. Pacific Maritime, 1648. The NLRB twice ruled that it would have decertified a union but refrained in both instances due to extenuating circumstances
225. Larus; Hughes Tool, 104 NLRB 318 (1953)
226. Williams to White et al., January 31, 1955, Part 13, Series A, reel 11
227. NLRB v. Pacific Ship. Ass'n, 218 F.2d 913 (9th Cir., 1955)
228. Pacific Ship. Ass'n, 915-16
229. citing Shelley; Hurd v. Hodge, 334 U.S. 24 (1948). Hurd extended Shelley's non-enforcement prohibition to federal courts
230. Lester P. Bailey to Hill, Aug. 2, 1955, Bracey and Meier, Part 13, Series A, reel 11
231. Hill to Moon, Aug. 3, 1955, ibid
232. Bailey to Hill, Aug. 1, 1955, ibid
233. Holt v. Oil Workers International Union, No. 430-707, judgment, District Court, Harris County, Texas (September 22, 1955), 8
234. Byrd to Carter, August 17, 1955, "PCGC, Complaint to, 1954-55" Folder, box 9, part III-J, NAACP Records
235. Syres v. Oil Workers International Union, Local No. 23,350 U.S. 892 (1955)
236. Edward W. Powers, "LMRA: Duty of Certified Union to Represent Bargaining Unit Fairly," Michigan Law Review 54 (February 1956): 567, 570
237. On the AFL-CIO merger and the CIO's negotiation of an anti-discrimination guarantee, see Arthur J. Goldberg, AFL-CIO, Labor United (New York: McGraw-Hill Book Co., 1956)
238. Zieger, The CIO, 360-64
239. Legal Department Report, March 1956, Bracey and Meier, Supplement to Part 1, 1956-1960, reel 1
240. Hill to Warner Brown, March 12, 1956, Bracey and Meier, eds., Papers of the NAACP, Supplement to Part 13: The NAACP and Labor (Bethesda: UPA, 1997), microfilm, reel 12
241. Hill to E. D. Sprott, March 21, 1956, ibid
242. Hill to Florence Irving, June 12, 1956, ibid
243. Muriel S. Outlaw to Moon, April 9, 1956, ibid
244. Executive Office Reports, May 14, 1956, Bracey and Meier, Supplement to Part 1, 1956-1960, reel 1. The Oil Workers' name had recently changed to the Oil, Chemical and Atomic Workers International Union. I continue to use "Oil Workers" for simplicity's sake. Like the Shell Oil workers, other African-American workers combined legal action with direct action
245. Pittsburgh Courier (March 8,1952), n.p
246. Cornelius Simmons to Hill, May 18, 1959, Bracey and Meier, Supplement to Part 13, reel 1
247. Hill to Boris Shishkin, May 7, 1956, Supplement to Part 13, reel 12
248. Hill to Shishkin, December 4, 1958, Bracey and Meier, Supplement to Part 13, reel 12
249. Carter to Richard Nixon, June 5, 1957, "Labor: PCGC, 1956-58" Folder, box 190, part III-A, NAACP Records; "New Policy for Bias Unit 'Badly Needed'-Wilkins," November 21, 1957, press release, ibid
250. Hill to A. Philip Randolph, January 9, 1958, ibid
251. Wilkins to Nixon, April 2, 1958, ibid
252. "President's Bias Committee to Report on Pending Cases," press release, April 24,1958, ibid
253. An example of Hill's letters to local branches involved in the oil litigation is Hill to C. B. Rainey, April 17,1958, "El Dorado, AK, 1956-58" Folder, box 3, part III-C, NAACP Records
254. Jacob Seidenberg to Carter, October 21, 1958, "Labor: PCGC, 1956-58" Folder, box 190, part III-A, NAACP Records
255. Margaret Garrity to Carter, August 18, 1960, "Labor: PCGC, 1959-62" Folder, box 190, part III-A, NAACP Records
256. For the mixed success of the oil workers' litigation, see Ray Marshall, "Some Factors Influencing the Upgrading of Negroes in the Southern Petroleum Refining Industry," Social Forces (Dec. 1963): 186
257. Hill to Joseph Houchins, September 2, 1959, "Labor: PCGC, 1959-62" Folder, box 190, part III-A, NAACP Records. Timothy Thurber's look at the PCGC, while uncovering its staff's desire to be more effective, which included trying less individualized approaches to discrimination, largely confirms the NAACP's view that the PCGC won few tangible changes in employment practices
258. Timothy M. Thurber, "Racial Liberalism, Affirmative Action, and the Troubled History of the President's Committee on Government Contracts," Journal of Policy History 18 (2006): 446
259. Woods, Black Struggle, especially ch. 2
260. George Lewis, The White South and the Red Menace: Segregationists, Anticommunism, and Massive Resistance, 1945-1965 (Gainesville: University Press of Florida, 2004)
261. On southern states' restrictions on the NAACP and their effect on the organization's work in those states, see August Meier and John H. Bracey, Jr., "The NAACP as a Reform Movement, 1909-1965: 'To Reach the Conscience of America,'" Journal of Southern History 59 (February 1993): 3, 25
262. Herbert Hill, January 5,1959, Bracey and Meier, Supplement to Part 1,1956-1960, reel 2
263. A.H. Raskin, "NAACP Accuses Labor of Bias Lag," New York Times (January 5, 1959), 29 (hereafter cited as NYT)
264. "Joint Statement of NAACP Executive Secretary and AFL-CIO President," March 20, 1959, Bracey and Meier, Supplement to Part 13, reel 1
265. See Arnesen, Brotherhoods of Color
266. Nelson, Divided We Stand. This issue often put all-black locals in conflict with integrationist national labor and civil rights leadership
267. Wilkins to Meany, May 25, 1960, Bracey and Meier, Supplement to Part 13, reel 1
268. Meany to Wilkins, May 27, 1960, ibid
269. NYT (May 25, 1960): C10
270. "Randolph Hails NAACP Role in Fighting Labor Union Bias," June 26, 1960, Bracey and Meier, Supplement to Part 1, 1956-1960, reel 12
271. Annual Convention Records, June 23, 1960, ibid
272. Wilkins to Members of Board, June, 1960, ibid. In a closed shop, the employer agrees to only hire union members. Here, a closed union is one that excludes African Americans from membership. A closed union that negotiates a closed shop effectively shuts black workers out of that employer's workplace. The Taft-Hartley Act banned closed shops but allowed workers to choose a union shop, which requires all new hires to join the union
273. On the NAACP's tactic of blending public pressure on the labor movement with continued alliance, see Meier and Bracey, "NAACP," 28
274. Hill, "Racism within Organized Labor: A Report of Five Years of the AFL-CIO, 1955-1960," January 3, 1961, Bracey and Meier, Supplement to Part 13, reel 7
275. "NAACP in Legal Attack," Oct. 16, 1962, Bracey and Meier, Supplement to Part 13, reel 11
276. James C. Dixon v. Seafarers International Union, draft NLRB petition, Oct. 1962
277. Bracey and Meier, Supplement to Part 13, reel 11
278. Hughes Tool Company, NLRB case no. 23-RC-1758, Oct. 24, 1962, ibid
279. Michael Sovern, "The National Labor Relations Act and Discrimination," Columbia Law Review 62 (1962): 563
280. "Lawyers' Conference," March 2-4, 1962, schedule, ed. Bracey and Meier, Papers of the NAACP, Part 22: Legal Department Administrative Files, 1956-1965 (Bethesda: UPA, 1997), microfilm, reel 19
281. For another NLRB action and the strains it put on the NAACP's relationship with organized labor, see Bruce Nelson, "'The CIO Meant One Thing for the Whites and Another Thing For Us': Steelworkers and Civil Rights, 1936-1974," in Southern Labor in Transition, ed. Robert H. Zeiger (Knoxville: University of Tennessee Press, 1997)
282. Miranda Fuel, 140 NLRB 181 (1962)
283. Pioneer Bus Co. v. Transport Workers Union of America, 140 NLRB 54, 55, n3 (1962)
284. citing Brown, 349 U.S. 294
285. Bailey v. Patterson, 369 U.S. 31 (1962)
286. Boynton v. Virginia, 364 U.S. 454 (1960)
287. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
288. Wilkins, Annual Meeting, remarks, January 7, 1963, Bracey and Meier, Supplement to Part 1, 1961-1965, reel 2
289. Hughes Tool, 1593-1608
290. L.A. Ashley to Carter, September 23, 1962, ibid
291. Carter and Maria Marcus to NLRB, complaint, ibid
292. Carter to Wilkins et al., February 28, 1963, Bracey and Meier, Supplement to Part 13, reel 5
293. NYT (March 1, 1963), 5
294. Hughes Tool, 1593-1608 (1964)
295. Exceptions to Trial Examiner's Report, April 4, 1963, ibid
296. Charging Party's Brief in Support of Trial Examiner's Report, April 25, 1963, ibid
297. Department of Justice, amicus brief, June 24, 1963, ibid
298. American Civil Liberties Union, amicus brief, July 12, 1963, ibid
299. United Auto Workers, amicus brief, Oct. 11, 1963, ibid
300. "Equality is Their Right," NYT (August 29, 1963), 23
301. For concerns that a Board decision would derail national fair employment legislation, see unsigned to Will [Maslow], February 29, 1964, ibid
302. For debates about its implications for the labor movement, see Carter to Henry, Nov. 8, 1963, ibid
303. Henry to Carter, Oct. 28, 1963, Bracey and Meier, Part 23, Series A, reel 41
304. Carter to Robert Kennedy, December 2, 1963, ibid
305. Carter to NLRB, December 2, 1963, ibid
306. Ogden W. Fields to Carter, December 5, 1963, ibid
307. Carter to NLRB, June 4, 1964, ibid
308. Hughes Tool, 1574. Hughes Tool was decided on July 1, 1964, but publicly released on July 2
309. Hughes, 1577-78, citing Brown, Bolling, Shelley, and Hurd
310. NYT (July 3, 1964), 1
311. Galveston Maritime Assn., Inc., 148 NLRB 897, 898 (1964)
312. Farmers' Cooperative Compress, 169 NLRB 290 (1968) targeted an employer
313. See also United Packinghouse, Food and Allied Workers' Union v. NLRB, 416 F.2d 1126 (9th Cir., 1969)
314. Carter to Branch Presidents, Aug. 13, 1964, Bracey and Meier, Supplement to Part 13, reel 11
315. Board of Directors Meeting, Sept. 14, 1964, Bracey and Meier, Supplement to Part 1, 1961-1965, reel 1
316. Annual Meeting, January 4, 1965, ibid., reel 2
317. Bekins Moving and Storage, Inc., 211 NLRB 138 (1974)
318. Handy Andy, 228 NLRB 447 (1977)
319. Bell & Howell Co. v. NLRB, 598 F.2d 136 (D.C. Ct. App., 1979)
320. Hill, Black Labor, 95. Right-to-work claims included First Amendment freedom of association claims and due process liberty claims
321. See, for example, Reid v. McDonnell Douglas Corp. 443 F.2d 408 (Okl. Ct. App., 1971). For an example of employers' race discrimination claims, see Bekins
322. Mack, "Rethinking Civil Rights Lawyering"
323. Mack, "Law and Mass Politics."