Racial Profiling Essays
Racial Profiling Essays
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Racial Profiling Essays Excerpts
In terms of the relationship between black dissidents and their allies and exclusive bargaining agents, the board and court approaches in Draper, Tanner, and Emporium Capwell have it all backwards. In all these cases the board and the courts have strained to discover a rapport between the union and the workers. In Tanner, the record simply did not reflect any such rapport. To some extent, one could be found in Emporium Capwell. Yet the board should not strain to discover a rapport inasmuch as no rapport exists normally and inasmuch as the policy enunciated in Draper makes absolutely no sense in the context of disputes involving racial discrimination in employment.
Initially, a walkout resulting from such a dispute should be presumed to be protected under Section 7 of the National Labor Relations Act if and when it is disruptive of the role played by a collective-bargaining representative which is not attempting to eliminate discrimination in the most efficient and expeditious manner possible. Because Congress passed Title VII out of a profound distrust of events taking place across the bargaining table -- a concern which has been buttressed by the record of many unions in the federal courts since 1965 -- the presumption in these cases should be that the bargaining agent is not doing its best to eradicate discrimination, and the burden should rest upon such a labor organization to show otherwise. The union is the agent through which conflict should properly emerge in such cases. In this respect, the Ninth Circuit's reliance upon Allis-Chalmers in the second Tanner opinion is quite appropriate. The difficulty is that Allis-Chalmers, a decision which permits the board to take into account public policy considerations, presumably beyond the NLRA itself, made no reference whatsoever to racial discrimination and Title VII. As the District of Columbia Circuit Court of Appeals in Emporium Capwell stated, the standard for trade unions should be the very highest one; "on the issue of whether to tolerate racial discrimination in employment...the law does not give the union an option to tolerate some racial discrimination, but declares that all racial discrimination in employment is illegal." It is important to note in this context also that the court did not impose the duty-of-fair-representation standard of bad faith upon the union in Emporium Capwell. The union's standard is considerably higher -- a standard which appears to be in accord with Title VII. That is why the union, although the court did not find it guilty of bad faith, nevertheless had not done enough.