9/3/07

Organized Labor's repugnant racist roots

This 125th Labor Day, Americans ought to consider one of organized labor's lesser-known contributions to American politics: affirmative action.

For most of their first century, American unions promoted affirmative action for white workers: Trade unions were job monopolies and most often white job monopolies. California unions, for example, led the campaign against Chinese immigrant labor, and the "union label" campaign helped to enable consumers to boycott products made by Chinese workers. "The cigars contained herein are made by WHITE MEN," the original union label read. As for East Coast immigrant labor, the celebrated socialist leader Eugene V. Debs once complained, "The Dago works for small pay and lives far more like a savage or wild beast, than the Chinese."

Above all, unions made it difficult for blacks to earn a living. The first large union federation, the National Labor Union, set the pattern of exclusion and evasion. Although it was broadly known that national and local unions excluded blacks, either by their constitutions or informal custom, the federation claimed that, since its constitution made no reference to the race issue, it was unnecessary to deal with it.

As a result, blacks often helped to break strikes by racially exclusive unions (such as Debs's American Railway Union during the 1894 Pullman strike). In response, unions became even more discriminatory and dismissed black complaints about union exclusion as demands for preferential treatment.

In 1917, Samuel Gompers, president of the American Federation of Labor (AFL), claimed, "Colored workmen have not been asking that equal rights be accorded to them as to white workmen, but [they] somehow convey the idea that they are to be petted or coddled and given special consideration and special privilege." He added, "Of course that can't be done."

In places where unions could not exclude blacks, they adopted racial quotas to limit their number or share of work. These were common in Gulf Coast port cities, and were used by railroad unions into the 20th century.

Black workers often had to fight past white picketers who threatened them with violence or death. And not only picketers. Gov. John R. Tanner of Illinois, a Republican, pledged to stop black replacement workers from breaking a mine workers' strike in 1898, saying he would "shoot to pieces with gatling guns" any train that transported them. An Illinois militia commander swore, "If any Negroes are brought while I am in charge, and they refuse to retreat when ordered to do so, I will order my men to fire."

Progressives also used federal legislation to enable private unions to maintain racial monopolies or even drive black workers out of their jobs. The La Follette Seamen's Act of 1915 sought to sweep Asians out of the merchant ship service. As Gompers told another leading Progressive, Sen. Robert La Follette, the unregulated labor market was "driving not only the American but all white men from the sea."

Empowered under the Railway Labor Act of 1926, the Brotherhood of Locomotive Firemen forced reluctant shippers to help them to eliminate black firemen. The Davis-Bacon Act of 1931 forced government contractors to pay the "prevailing" or union wage as a means to prevent them from hiring black non-union workers. The 1941 Southeastern Carriers Agreement (which the black press dubbed the "Hitler Agreement") imposed a 50% quota on black firemen, forbade any hiring of blacks and stripped them of all seniority rights until this quota was attained. It also permitted secret side-agreements to set lower quotas.

The 1935 Wagner Act gave unions the power to organize mass-production industries. It was hailed as a crowning achievement, but civil- rights organizations at the time opposed the act because it did not prohibit racial exclusion--"the worst piece of legislation ever passed by the Congress," Urban League President Lester Granger called it. (Ironically, the term "affirmative action" made its statutory debut in the Wagner Act, giving to the National Labor Relations Board power to order employers guilty of unfair labor practices to take such "affirmative action" as reinstatement, back pay or promotion.)

By the end of World War II, the federal judiciary recognized the problem of the black worker under federal labor law, and imposed on unions a duty of "fair representation." While not compelled to admit blacks as members, unions certified as exclusive bargaining agents could not use their monopoly power to disadvantage minority-group workers. Nevertheless, since the National Labor Relations Board consistently took the side of white unions, the onus of enforcing the fair representation doctrine fell on individual black workers.

By the 1960s, two decades of executive orders and state fair employment laws to cease discrimination had made little impact on unions. And when Congress finally outlawed employment discrimination in the Civil Rights Act of 1964, it included an exemption for "bona fide seniority systems," in order to protect benefits that white workers had won at the expense of blacks over the previous generation.

In the process of trying to overcome this loophole, federal agencies devised the doctrine of "the present effects of past discrimination," which lies at the heart of contemporary affirmative action theory.

The architects of affirmative action began to formulate the "present effects of past discrimination" principle, which they called the "rightful place" doctrine, in the late 1960s, and the federal courts eagerly adopted it. The Supreme Court endorsed it in the 1971 Griggs case. Although an employer may not intentionally discriminate, the under-representation of minority workers is regarded as perpetuating past discrimination.

This theory made sense with regard to already illegal and overt union discrimination. But it metastasized into our general principle of "disparate impact"--any policy that has racially disproportionate results is presumed unlawful, and thus encourages employers to adopt racial quotas.

And yet the Supreme Court effectively restored the seniority system exemption for unions in 1977. After the unions had taken care of their senior members, the court then gave its imprimatur to "voluntary" quotas in the 1979 Weber case, in which the United Steelworkers set aside half of their skilled apprentice training slots for blacks, and shielded employers against "reverse discrimination" suits by white workers.

Unions accomplished a similar feat of provoking and then escaping quotas in the federal contracting program known as the "Philadelphia Plan." President Lyndon Johnson's Labor Department devised a set of "goals and timetables" to increase the number of blacks in the notoriously "lily-white" construction trades.

The Nixon administration implemented these plans, enraging leaders of the AFL. But after decades of dismissing legitimate black demands for equal treatment as preferential treatment, the unions' condemnation of actual demands for preferential treatment lacked force.

Nixon soon extended the Philadelphia Plan from construction trades to all government contractors--covering perhaps half of the American work force. And yet, remarkably, the very construction unions that provoked the Philadelphia Plan soon won exemption from it. The Labor Department, now headed by AFL-CIO Construction Trades President Peter Brennan ("the fox was given the duty of guarding the chickens," a former N.L.R.B. chairman noted), substituted less demanding and voluntary "hometown plans" for the quota systems of the original Philadelphia Plan.

Critics usually point to federal bureaucrats and judges as the architects of affirmative action. They ought to remember the unions who provided the materials.

(opinionjournal.com)

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