NAACP v. Harrison Petition for Writ of Certiorari to the Supreme Court of Appeals of Virginia

    No. 26232

IN THE

United States Court of Appeals
FOR THE SECOND CIRCUIT

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.

MIRANDA FUEL CO., INC., Respondent

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

LOCAL 553, INTERNATIONAL BROTHERHOOD OF 
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN 
AND HELPERS OF AMERICA, Respondent

ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL 
LABOR RELATIONS BOARD

BRIEF FOR THE UNITED AUTOMOBILE, AERO­
SPACE & AGRICULTURAL IMPLEMENT WORKERS 
OF AMERICA (AFL-CIO) AS AMICUS CURIAE.

J o s e p h  L. R a u h , J r ., 
J o h n  S il a r d ,
S t e p h e n  I. S c h l o s s b e b g , 

1625 K  Street, N.W., 
Washington 6, D. C.,

B e n j a m i n  R u b e n s t e in , 
393 Seventh Avenue, 
New York, New York, 

Attorneys for Amicus Curiae.



INDEX
Page

Statement of the Case.................................................... 1
Introduction ...................................................................  2
Argument .......................................................................  3

While Racially Discriminatory Bargaining Repre­
sentation Constitutes an Unfair Labor Practice, 
Discrimination Against Individual or Minority 
Workers in the Absence of Any Racial Taint Is a 
Ground for Judicial Rather Than Labor Board
Jurisdiction ...............................................................  3

I. The Differing Adjudicatory Function in 
Testing Racial and Non-Racial Classifica­
tions .................................................................  5

II. Evaluation of Competing Economic Claims 
Involved in Non-Racial Differentiations in 
Employee Rights, Exceeds the Congres­
sionally-approved Authority of the Board. . 12

III. Remedies Against Racially Discriminatory 
Bargaining Representation, Comport with 
the Area of Jurisdiction Congress Has En­
trusted to the Board Under Section 8 of the
Act ...................................................................  15

Conclusion.......................................................................  18

C it a t io n s

American Screw Co., 122 NLRB 485........................... 16
Atkinson v. Sinclair Refining Co., 370 U.S. 235, 245,

n. 5 .................................................................................  13
Bolling v. Sharpe, 347 U.S. 497....................................  7
Brotherhood of Railway Trainmen v. Howard, 343

U.S. 768 (1952).........   3
Brown v. Board of Education, 347 U.S. 483, 490-91,

n. 5 .................................................................................  7
Central of Georgia Railway Co. v. Jones, 229 F. 2d

648 (C.A. 5, 1956)........................................................  3
Conley v. Gibson, 355 U.S. 41 (1957).........................  3
Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513 13
Goesart v. Cleary, 335 U.S. 464................................... 10

-8625-6



11 INDEX

Page
Goss v. Board of Education of Knoxville, 373 U.S.

683 ...............................................................................  9
Hill v. Texas, 316 U.S. 400............................................  10
Hughes Tool Co. v. NLRB, 147 F. 2d 69 (C.A. 5, 1945) 3
Labor Board v. American Insurance Company, 343

U.S. 395, 404...............................................................  12
Labor Board v. Insurance Agents, 361 U.S. 477, 488 12
McGowan v. Maryland, 366 U.S. 420.......................... 6
Republic Aviation Corp. v. NLRB, 324 U.S. 793........ 17
Shelley v. Kraemer, 334 U.S. 1, 23............................. 7
Smith v. Evening News, 371 U.S. 195, 197.................  13,14
State of Missouri ex rel. Gaines v. Canada, 305 U.S.

337 .................................................................................  10
Steele v. Louisville <& Nashville R.R. Co., 323 U.S. 192

(1944) .................................................................. 3,5,8,9,16
Strauder v. West Virginia, 100 U.S. 303, 307-08.......  8
Syres v. Oil Workers International Union, 350 U.S.

892 (1955), reversing 223 F. 2d 739 (C.A. 5, 1955) 3, 5
Teamsters Local v. Lucas Flour Co., 369 U.S. 95,101,

n. 9 .................................................................................  13
Textile Workers v. Lincoln Mills, 353 U.S. 448.........  13
Truax v. Raich, 239 U.S. 33, 41...................................  6
United Steelworkers v. Warrior and Gulf Co., 363

U.S. 574, 581................................................................ 13,14
Wallace Corp. v. NLRB, 323 U.S. 248, 255-256 (1944) 3
Yick Wo v. Hopkins, 118 U.S. 356..............................  10
Yu Cong Eng v. Trinidad, 271 U.S. 500.....................  10

M is c e l l a n e o u s

Cox, The Duty of Fair Representation, 2 Vill. L. Rev.
151 (1957).................................................................... 4

Hart, The Power of Congress to Limit the Jurisdic­
tion of Federal Courts, 66 Harv. L. Rev. 1362,1386-
1396 .............................................................................  5

H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 42 14
H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 19.........  12
Sovern, The National Labor Relations Act and Racial 

Discrimination, 62 Colum. L. Rev. 563 (1962).........  4



IN THE

United States Court of Appeals
FOB THE SECOND CIRCUIT

No. 26232

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

MIRANDA FUEL CO., INC., Respondent

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

LOCAL 553, INTERNATIONAL BROTHERHOOD OF 
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN 
AND HELPERS OF AMERICA, Respondent

ON PETITION FOB ENFORCEMENT OF AN ORDER OF THE NATIONAL 
LABOR RELATIONS BOARD

BRIEF FOR THE UNITED AUTOMOBILE, AERO­
SPACE & AGRICULTURAL IMPLEMENT WORKERS 
OF AMERICA (AFL-CIO) AS AMICUS CURIAE.

Statement of the Case

Amicus curiae accepts the statement of the case as it 
appears in the brief for respondent, Teamsters Local 553. 
For the purposes of the argument to be made in this brief,

(1)



2

amicus curiae takes no exception to the statement of the 
case as it appears in the brief for petitioner, National Labor 
Relations Board.

Introduction

This brief is presented to the Court to underline the dif­
fering nature of charges alleging, on the one hand, racially 
discriminatory collective bargaining, and on the other, al­
leging merely unfair or inadequate representation of the 
interests of one or another category of workers. We brief 
herein the proposition that, while racially discriminatory 
bargaining representation does constitute an unfair labor 
practice cognizable by the Labor Board, alleged discrimi­
nation against individual or minority workers in the ab­
sence of any racial taint is a ground for judicial rather 
than Labor Board jurisdiction.

The United Automobile, Aerospace & Agricultural Im­
plement Workers of America (AFL-CIO) is an unincor­
porated labor organization with headquarters in Detroit, 
Michigan. As statutory bargaining representative for in 
excess of a million automobile, aerospace, agricultural im­
plement and other workers, it is directly interested in 
the present case. The Union believes that the questions 
pending before this Court involve the right of labor unions 
to be free from burdensome Labor Board proceedings oc­
casioned by the great range of economic issues about which 
individual workers or groups of workers may feel aggrieved 
under the terms of a collective bargaining agreement. 
Equally important, however, is the assurance of expedi­
tious and effective remedies before the National Labor 
Relations Board against racial discrimination in collective 
bargaining and in collective bargaining agreements.

We do not, of course, suggest that the present case pre­
sents any question of racial discrimination. But the tend­



3

ency to treat as similar or alike the racial and non-racial 
discrimination situations has been manifested in the briefs 
and the legal literature in this area. Amicus curiae urges 
that in the reversal of the ruling of the Board in this case— 
a reversal which we believe to be required by the pertinent 
legal considerations—there be no implication that a similar 
result would be reached in the area of racially discrimi­
natory bargaining, which presents functionally different 
considerations in the interpretation of the Labor Manage­
ment Relations Act.

ARGUMENT

W H ILE RACIALLY DISCRIMINATORY BARGAINING  
REPRESENTATION CONSTITUTES AN UNFAIR  
LABOR PRACTICE, DISCRIMINATION AGAINST  
INDIVIDUAL OR MINORITY WORKERS IN THE 
ABSENCE OF ANY RACIAL TAINT IS A  GROUND 
FOR JUDICIAL RATHER THAN LABOR BOARD 
JURISDICTION.

It has been almost twenty years since the United States 
Supreme Court found implicit in the general language of 
the Railway Labor Act a duty of fair representation by 
the statutory collective bargaining representative. Steele 
v. Louisville <b Nashville R.R. Co., 323 U.S. 192 (1944). In 
the intervening years, courts have found a similar implied 
duty under the National Labor Relations Act, and have 
enforced fair representation both in racial and non-racial 
situations.1 Meanwhile, Congress has amended and re­

1 See, e.g. Wallace Corp. v. NLRB, 323 U.S. 248, 255-256 (1944); Syres 
v. Oil Workers International Union, 350 U.S. 892 (1955), reversing 223 
F. 2d 739 (C.A. 5, 1955); Conley v. Gibson, 355 U.S. 41 (1957) ; Hughes 
Tool Co. v. NLRB, 147 F. 2d 69 (C.A. 5, 1945); Brotherhood o f Railway 
Trainmen v. Howard, 343 U.S. 768 (1952); Central o f Georgia Railway 
Co. v. Jones, 229 F. 2d 648 (C.A. 5, 1956).



4

enacted the Act without particularizing either the right to 
fair representation or the remedies it finds most suitable 
for its vindication, but even without Congressional clari­
fication there is general agreement that an implied statu­
tory right of fair representation exists, which Congress 
has left to adjudicatory elaboration.2 Indeed, in this Court 
both the Board and the Union agree that discriminatory 
representation by the certified bargaining representative 
transgresses an implicit statutory duty of fair representa­
tion.

Accordingly, the principal pending question is not 
whether a statutory duty of fair representation exists; the 
question is whether that duty is enforceable by the Board 
through unfair labor practice remedies. In the analysis 
of that question there has been a tendency to treat as iden­
tical the applicability of the unfair labor practice sections 
of the Act to racial and to non-racial discrimination in 
collective bargaining. Thus, the Board in this Court urges 
that an unfair labor practice arises from unequal repre­
sentation of minority workers whether it be racial or non- 
racial in character; Local 553, on the other hand, would 
deny the applicability of the unfair labor1 practice remedies 
to either category of discrimination.

We urge this Court to eschew the “ either neither or both”  
approach. In our view, racially discriminatory bargaining 
representation is an unfair labor practice, but non-racial 
discrimination among workers is a ground for judicial 
remedies, not unfair labor practice proceedings. Analysis 
of applicable constitutional norms and the differing func­
tion of adjudication in the racial and the non-racial situ­

2 See Cox, The Duty o f Fair Representation, 2 Vill. L. Rev. 151 (1957); 
Sovern, The National Labor Relations Act and Racial Discrimination, 62 
Colum. L. Rev. 563 (1962).



5

ations, demonstrates that the Board’s exercise of juris­
diction in the pending case was beyond its authority, 
whereas unfair labor practice remedies in racially discrimi­
natory bargaining situations are appropriate and proper.3

I. The Differing Adjudicatory Function in Testing Racial 
and Non-Racial Classifications

A vital difference exists in the adjudicatory function 
invoked by the challenge on the one hand of racial and 
on the other hand of non-racial differentiations. Under 
prevailing constitutional and statutory guarantees of equal 
protection, in racial situations the adjudicatory function 
begins and ends with the question “ has race been made 
a basis of unfavorable differentiation?” . But in the chal­
lenge of unfavorable minority classifications not alleged

3 A  pertinent question which arises from our view that racially discrimi­
natory bargaining constitutes an unfair labor practice, is whether a pre­
emption situation is thereby created which would bar relief in the federal 
courts. See Syres v. Oil Workers, 350 U.S. 892. Whatever the technical 
considerations may import concerning pre-emption o f a statutory right to 
fair representation, we do not believe that the statutory right redressable 
by the Board, preempts judicial jurisdiction to vindicate the constitutional 
right to non-discriminatory treatment o f the class for  which the union is 
the exclusive representative under federal law. See concurring opinion of 
Mr. Justice Murphy in Steele v. Louisville d~ Nashville R.R. Co., 323 U.S. 
192, 208.

There is a general presumption that Congress has provided a judicial 
forum for the redress o f constitutional rights. See Hart, The Power of 
Congress to Limit the Jurisdiction of Federal Courts, 66 Harv. L. Rev. 
1362, 1386-1396. While Congress has, in our view, provided fo r  discre­
tionary power in the General Counsel to institute Board proceedings 
against racially discriminatory bargaining, there is no reason to believe 
that Congress has relegated the constitutional rights o f individual workers 
to the discretion o f an executive official. Since a serious constitutional 
question would arise from the failure o f Congress to provide a right o f 
judicial action for  the vindication of constitutional rights (see Hart, supra), 
it must be presumed that Congress has nowhere impaired the forum of 
judicial redress for workers asserting their constitutional right to fair 
treatment by the collective bargaining representative.



6

to be racial, the adjudicatory inquiry merely begins with 
the question as to the existence of the distinction—it must 
go on to determine whether a legitimate economic or other 
predicate underlines that discrimination. In short, with 
respect to race the question is “ has it been made the basis 
of a distinction?” , whereas in other classification cases 
the critical question is “ is there a difference which warrants 
the distinction?” .

The disparate constitutional standards applied by the 
Supreme Court’s rulings to racial classifications and to 
other classifications is not difficult of illustration. The 
rule in non-racial classification, most recently repeated and 
summarized in McGowan v. Maryland, 366 U.S. 420, is that 
“ discrimination will not be set aside if any state of facts 
reasonably may be conceived to justify it” :

“ . . . the Court has held that the Fourteenth Amend­
ment permits the, States a wide scope of discretion 
in enacting laws which affect some groups of citizens 
differently than others. The constitutional safeguard 
is offended only if the classification rests on grounds 
wholly irrelevant to the achievement of the State’s 
objective. State legislatures are presumed to have 
acted within their constitutional power despite the fact 
that, in practice, their laws result in some inequality. 
A statutory discrimination will not be set aside if 
any state of facts reasonably may be conceived to jus­
tify it.”

By contrast, a classification “ because of race”  is not sub­
ject to justification. One of the earliest cases setting forth 
the reason for the per se doctrine applicable to racial classi­
fication is Truax v. Raich, 239 U.S. 33, 41. There, the Court 
explained in striking down a discrimination against the 
foreign born:



7

“ It is sought to justify this act as an exercise of the 
power of the State to make reasonable classifications 
in legislating to promote the health, safety, morals and 
welfare of those within its jurisdiction. But this ad­
mitted authority, with the broad range of legislative 
discretion that it implies, does not go so far as to 
make it possible for the State to deny to lawful in­
habitants, because of their race or nationality, the 
ordinary means of earning a livelihood. It requires 
no argument to show that the right to work for a liv­
ing in the common occupations of the community is 
of the very essence of the personal freedom and op­
portunity that it was the purpose of the Amendment 
to secure. . . .  If this could be refused solely upon the 
ground of race or nationality, the prohibition of the 
denial to any person of the equal protection of the laws 
would be a barren form of words.” 4

The reasons for applying a per se standard with respect 
to classifications based on race inhere in the “ historical 
context in which the Fourteenth Amendment became a part 
of the Constitution . . . ”  Shelley v. Kraemer, 334 U.S. 1, 
23. In Brown v. Board of Education, 347 U.S. 483, 490-91, 
n. 5, the Supreme Court reiterated the absolute constitu­
tional interdiction on racial classification, quoting its his­

4 In Bolling v. Sharpe, 347 U.S. 497, even in the absence o f a Fifth 
Amendment equal protection clause, segregation “ because o f race”  in the 
public schools of the District o f Columbia was found unconstitutional:

“ Classifications based solely upon race must be scrutinized with 
particular care, since they are contrary to our traditions and hence 
constitutionally suspect. As long ago as 1896, this Court declared the 
principle ‘that the Constitution o f the United States, in its present 
form, forbids, so far as civil and political rights are concerned, dis­
crimination by the General Government, or by the States, against any 
citizen because o f his race,’ ”



8

toric passage from Strauder v. West Virginia, 100 U.S. 303, 
307-08:

. . no State shall deprive any person of life, liberty, 
or property, without due process of law, or deny to any 
person within its jurisdiction the equal protection of 
the laws. What is this but declaring that the law in 
the States shall be the same for the black as for the 
white; that all persons, whether colored or white, shall 
stand equal before the laws of the States, and, in regard 
to the colored race, for whose protection the amend­
ment was primarily designed, that no discrimination 
shall be made against them by law because of their 
color? The words of the amendment, it is true, are 
prohibitory, but they contain a necessary implication 
of a positive immunity, or right, most valuable to the 
colored race—the right to exemption from unfriendly 
legislation against them distinctively as colored— ex­
emption from legal discriminations, implying inferi­
ority in civil society, lessening the security of their 
enjoyment of the rights which others enjoy, and dis­
criminations which are steps towards reducing them to 
the condition of a subject race.”

Nor is the critical distinction behveen racial and non- 
racial classifications limited to constitutional cases— it 
applies equally to statutes which import non-discrimination 
requirements akin to equal protection. The point was made 
in the landmark case from which the “ right to fair repre­
sentation”  arises—Steele v. Louisville <& Nashville R.R. Co., 
323 U.S. at 202. The Supreme Court there expressly distin­
guished racial and non-racial classifications in bargaining 
rights, finding that “ discriminations based on race alone



9

are obviously irrelevant and invidious” ,5 whereas collective 
contracts may have “ unfavorable effects on some of the 
members of the craft represented”  as long as they are 
based upon “ relevant differences” :

“ We hold that the language of the Act to which we 
have referred, read in the light of the purposes of the 
Act, expresses the aim of Congress to impose on the 
bargaining representative of a craft or class of em­
ployees the duty to exercise fairly the power conferred 
upon it in behalf of all those for whom it acts, without 
hostile discrimination against them.

“ This does not mean that the statutory representa­
tive of a craft is barred from making contracts which 
may have unfavorable effects on some of the members 
of the craft represented. Variations in the terms of 
the contract based on differences relevant to the 
authorized purposes of the contract in conditions to 
which they are to be applied, such as differences in 
seniority, the type of work performed, the competence 
and skill with which it is performed, are within the 
scope of the bargaining representation of a craft, all 
of whose members are not identical in their interest 
or merit. . . . Without attempting to mark the allow­
able limits of differences in the terms of contracts based 
on differences of conditions to which they apply, it is 
enough for present purposes to say that the statutory 
power to represent a craft and to make contracts as to 
wages, hours and working conditions does not include

5 This stricture was repeated by the Supreme Court as late as June, 1963, 
in its decision in Goss v. Board o f Education o f Knoxville, 373 U.S. 683, 
where the Court quoted the “ obviously irrelevant and invidious”  language 
o f Steele, and went on to recite the “ variety o f instances in which racial 
classifications have been held to be invalid . .



10

the authority to make among members of the craft dis­
criminations not based on such relevant differences. 
Here the discriminations based on race alone are ob­
viously irrelevant and invidious. Congress plainly did 
not undertake to authorize the bargaining representa­
tive to make such discriminations. Cf. Yick Wo v. 
Hopkins, 118 U.S. 356; Yu Cong Eng v. Trinidad, 271 
U.S. 500; State of Missouri ex rel. Gaines v. Canada, 
305 U.S. 337; Hill v. Texas, 316 U.S. 400.”  (emphasis 
supplied)

In contrast to the per se doctrine applicable to race, the 
Supreme Court has with respect to almost all other classi­
fications inquired whether some permissible difference 
underlies them. Thus, women were found permissibly ex­
cluded from employment as bartenders under a state law 
which actually exempted the wives and daughters of liquor 
store owners. Goe.sart v. Cleary, 335 U.S. 464. The Court 
noted that in the light of state legislative authority con­
cerning the regulation of the liquor traffic, ‘ ‘ Michigan could, 
beyond question, forbid all women from working behind 
a bar ’ ’, and dismissed the argument of class discrimination, 
holding that “ since the line they [the legislatures] have 
drawn is not without a basis in reason, we cannot give ear 
to the suggestion that the real impulse behind this legis­
lation was an unchivalrous desire of male bartenders to 
try to monopolize the calling.”  But whether a particular 
classification is found arbitrary or justified, the presently 
relevant fact is that in non-racial classification cases the 
adjudicatory forum must inquire into the substance of 
economic and social realities. Unlike racial cases which 
require only the discovery of racial classification, other 
claims of unequal treatment or unfair limitation of minor­
ity rights, require substantive analysis of the conflicting



11

claims of competing interest groups and the evaluation 
of policies alleged as the justification for differentiation.6

In this functional distinction is found the critical element 
for assessing the applicability of the unfair labor practice 
sections of the Act to racial and to non-racial classifications 
by the bargaining representative. Labor Board adjudica­
tion under Section 8 of non-racial unfair representation 
cases would necessarily involve the Board in adjusting 
substantive economic rights among competing groups of 
workers under collective bargaining agreements. As we 
demonstrate below, Congress has expressly manifested a 
disinclination to entrust such substantive arbitral functions 
to the Board; in the absence of express legislation, the 
right to fair representation in this area must be vindicated 
through the traditional remedies afforded in the courts.

On the other hand, the Board’s adjudication in the per se 
racial cases requires merely the discovery of a racial dis­
tinction, without exercise of economic and social judgments 
about its valadity. As we further show below, the function 
of discovering racial distinctions is well within the area of 
general competence which the Congress has entrusted to 
the Labor Board under the unfair labor practice provisions 
of the Act.

6 The individualized aggrievement involved in the ease pending before 
this Court should not obscure the thrust o f the Board’s ruling in future 
cases involving challenge to contractual differentiations among groupings. 
For example, a subject of recurring dispute within bargaining units is that 
o f seniority as between skilled and less skilled workers. A  merging of 
seniority lines on a plant-wide basis is the kind o f union economic judgment 
which will certainly give rise to Labor Board charges should the Board’s 
jurisdiction in the pending case be affirmed.



12

II. Evaluation of Competing Economic Claims Involved in 
Non-Racial Differentiations in Employee Rights, Ex­
ceeds the Congressionally-approved Authority of the 
Board.

As the Supreme Court has repeatedly reiterated, Con­
gress has denied to the Board the power to supervise the 
subject matter of collective bargaining. In Labor Board 
v. American Insurance Company, 343 U.S. 395, 404, the 
Court traced the legislative history of the Taft-Hartley Act, 
and particularly Section 8(d) thereof, which contains the 
express provision that the obligation to bargain collectively 
“ does not compel either party to agree to a proposal or 
require the making of a concession” . The purpose of this 
provision was to still ‘ the fear [which] was expressed in 
Congress that the Board ‘ lias gone very far, in the guise of 
determining whether or not employers had bargained in 
good faith, in setting itself up as the judge of what con­
cessions an employer must make and of the proposals and 
counterproposals that he may or may not make.’ ”  Id. 
quoting H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 19. The 
Court concluded that “ the Board may not, either directly 
or indirectly, compel concessions or otherwise sit in judg­
ment upon the substantive terms of collective bargaining 
agreements”  (343 U.S. at 404).

In Labor Board v. Insurance Agents, 361 U.S. 477, 488, 
the Court said that “ Congress intended that the parties 
should have wide latitude in their negotiations, unrestricted 
by any governmental power to regulate the substantive 
solution of their differences.”  In the same case the Court 
said, “ Our labor policy is not presently erected on a founda­
tion of government control of the results of the negotia­
tions.”  Id. at 490.

Nor does the Congressional disinclination to authorize



13

Labor Board involvement in the substance of collective 
bargaining end with the consummation of a contract. It 
includes the subsequent grievance representation and con­
tract enforcement processes. Section 8(d) of the Act states 
that “ to bargain collectively is the performance of the 
mutual obligation of the employer and the representative 
. . . to confer in good faith with respect to . . . the nego­
tiation of an agreement, or any question arising there­
under.”  The grievance procedui-e is “ a part of the con­
tinuous collective bargaining process.”  United Steel­
workers v. Warrior and Gulf Co., 363 U.S. 574, 581.

From this process, too, the Congress has deliberately ex­
cluded the Board. See Charles Doivd Box Co. v. Courtney, 
368 U.S. 502, 513; Teamsters Local v. Lucas Flour Co., 369 
U.S. 95, 101, n. 9; Atkinson v. Sinclair Refining Co., 370 
U.S. 235, 245, n. 5; Smith v. Evening News, 371 U.S. 195, 
197. Congressional disapproval of Labor Board involve­
ment in the substance of collective bargaining contracts 
emerges clearly from Section 301 of the Act. That section 
expresses the Congressional judgment that courts rather 
than the Board are the appropriate forum for the construc­
tion and enforcement of employment rights under collective 
bargaining agreements. Indeed, that Congressional pref­
erence is expressly stated in the legislative history. As the 
Supreme Court noted in its decision in Textile Workers v. 
Lincoln Mills, 353 U.S. 448, both the House and Senate bills 
had made violation of agreements to arbitrate an unfair 
labor practice, but:

“ This feature of the law was dropped in Conference. 
As the Conference Report stated, ‘ Once parties have 
made a collective bargaining contract the enforcement 
of that contract should be left to the usual processes of 
the law and not to the National Labor Relations Board.’



14

H.R. Conf. Rep. No. 510, 80tli Cong., 1st Sess., p. 42.”  
(353 U.S. at 452).

In Section 301 and in this legislative history is found fur­
ther evidence of the Congressional judgment that evaluation 
of competing rights and interests under collective agree­
ments is a function for which courts are suited but which 
falls outside the narrower competence of the National Labor 
Relations Board.7

In sum, when the Board interferes, as it did in the case 
at bar, with the resolution of employment rights under 
collective bargaining agreements either in their making or 
in their enforcement through grievance machinery, it runs 
a serious risk of interfering with the ‘ ‘ system of industrial 
selfgovernment”  (Warrior and Gulf Co., supra, at 580) 
which Congress established in the national labor policy. 
True, the “ right of fair representation”  may on occasion 
require the invalidation of unfavorable individual or class 
distinctions in the terms or the enforcement of a collective 
contract, but it is clear that so deep an inroad upon the 
substance of collectively bargained working rights is only 
for courts, not for the Board to undertake.

Congress has made clear its reluctance to entrust the 
Board with substantive arbitral power over the collective 
contract. Accordingly, the decision of the Board in this 
case should be reversed. Yet as concerns the applicability 
of the unfair labor practice sections to racial discrimination 
in collective bargaining, here the result must he otherwise.

7 Of course, i f  the same operative facts constitute a contract violation 
and an unfair labor practice, the Board in its role as the protector o f public 
rights is not ousted from jurisdiction. Smith v. Evening News, 371 U.S. 
195, 197.



15

As we next demonstrate, the adjudicatory function in racial 
cases fully comports with the area of jurisdiction which 
Congress has entrusted to the Board under Section 8 of 
the Act.

III. Remedies Against Racially Discriminatory Bargaining 
Representation, Comport with the Area of Jurisdic­
tion Congress Has Entrusted to the Board Under 
Section 8 of the Act.

As we have earlier demonstrated, the adjudicatory func­
tion in racial classification cases requires only the eviden­
tiary inquiry whether disadvantage has been thrust upon 
a group or an individual “ because o f”  race. Supra, pp. 
5 to 11. Such an inquiry requires no evaluation of 
competing economic interests said to justify class distinc­
tions. Such an inquiry, too, is closely analogous to the 
Board’s function in Section 8(a)(1) and 8(a)(3) cases of 
discovering whether “ because o f ”  protected activity, 
workers have been subjected to disadvantage or discipline. 
Since the limited function of adjudication in the racial dis­
crimination cases closely approximates functions which the 
Congress has willingly entrusted to the Board, Congress 
may be presumed to have approved the Board as a cor­
rective forum in such cases.

Such an implicit Congressional preference for Board 
jurisdiction in racial cases may also derive from the “ pre­
ferred position”  of the right to non-racial treatment under 
our constitutional scheme. A special concern is found in 
the Fourteenth and Fifth Amendments in the area of 
government or governmentally-supported racial practices. 
See supra, pp. 5 to 8. It is clear from the Labor 
Management Relations Act that Congress has made the 
Board the forum for dealing with those problems and areas



16

which Congress deemed to have particular national im­
port in labor relations. Racial discrimination by the statu­
tory representative certainly ranks no lower in the inti­
macy of national concern than related questions which 
Congress has placed before the Board in the unfair labor 
practice provisions of the Act.

The declared purpose and policy of the Labor Manage­
ment Relations Act [Section 1 (b)] is “ to prescribe the 
legitimate rights of employees”  and “ to protect the rights 
of individual employees.”  This declaration, coming after 
the Steele decision, reinforced the policy of the Wagner 
Act which specified that workers should have “ full free­
dom of association. ’ ’ Section 7 of the Act implements these 
policies by giving workers the right to engage in union 
activities for “ mutual aid or protection.”  Section 7 is, 
however, nothing more than an empty promise if, because 
of racial discrimination by a union, an employer, or both, 
an employee is permitted only pro forma exercise of those 
rights. The statutory guarantee of union participation in­
cludes the right to the substantive benefits of that partici­
pation in the collective bargaining process. Denial of the 
fruits of collective bargaining because of color, erases for 
affected employees, their Section 7 rights under the Act.

Section 8(a)(1 ) and 8 (b )(1 )(A )8 were enacted to 
protect the rights given employees in Section 7. Where 
employers and unions erect racial barriers to the enjoy­
ment of Section 7 rights, they violate those sections of 
the Act. 'Whether the denial of those rights, on grounds

8 The proviso to § 8(b) (1) (A)  which provides that it “ shall not impair 
the right o f a labor organization to prescribe its own rules 'with respect 
to the acquisition or retention of membership therein” should be recognized 
as an ineffective shield for a union using its internal rules to deny employees 
statutory rights under the Act. See, e.g. American Screw Co., 122 NLRB 
485.



17

of race, is accomplished by disparate treatment, by ex­
clusion, or by segregation, there is, in the final analysis, 
no genuine opportunity to join and to assist unions or to 
engage in concerted activities for mutual aid and protec­
tion. The Supreme Court has held that conduct which ac­
tually interferes with Section 7 rights need not be moti­
vated by anti-unionism to be unlawful. Republic Aviation 
Corp. v. NLRB, 324 U.S. 793. Consequently, where the 
Board, without the necessity of balancing economic interests 
or sitting in judgment on collective bargaining agreements, 
finds that naked racial bias prevents the real enjoyment 
of Section 7 benefits, policy considerations compel a finding 
of illegality. Moreover, since Congress was aware in 1947 
that the Supreme Court had interdicted in Steele not only a 
racially discriminatory collective contract but also the proc­
ess of racially discriminatory bargaining, it may be pre­
sumed that the statute renders such bargaining not in good 
faith and thus a violation of Section 8(a)(5 ) and 8(b)(3).

We are mindful, of course, that the tendered construction 
of the statutory provisions derives less from the words 
Congress has employed than from implication flowing from 
the constitutional background. But we begin with the as­
sumption that the minority right of fair representation is 
nowhere made explicit in the Act, and is read into it for 
constitutional reasons. And once that is done, we urge 
that in the racial area where no necessity arises for bal­
ancing competing economic interests underlying contractual 
differentiations in employment rights, there is no less com­
pelling reason for finding a prohibition on racially dis­
criminatory bargaining in Section 8 than in Section 9 of 
the Act. Accordingly, we urge that in the area of racial 
discrimination, rights and prohibitions inhere in Section 8



18

of the Act, which the Board may in appropriate cases vindi­
cate through unfair practice proceedings.

Conclusion

Amicus curiae respectfully urges the Court to note the 
salient distinctions between the present case and one in 
which the bargaining representative has engaged in racial 
discrimination. We urge that in the pending case the de­
cision of the Board should he reversed, without importing 
the result in a case of racially discriminatory bargaining, 
which presents functionally different considerations in the 
interpretation of the statute.

Respectfully submitted,

J o s e p h  L. R atjh , J r ., 

J o h n  S il a r d ,

S t e p h e n  I. S c h l o s s b e r g , 

1625 K  Street, N.W., 
Washington 6, D. C.,

B e n j a m i n  R u b e n s t e in , 

393 Seventh Avenue, 
New York, New York, 

Attorneys for Amicus Curiae.

(8625-6)