James v. Boilermakers Union Record and Briefs
Public Court Documents
January 1, 1944 - January 1, 1945
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Brief Collection, LDF Court Filings. James v. Boilermakers Union Record and Briefs, 1944. 3de53553-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6eeabd44-a417-497b-a56f-1ffa72b4697a/james-v-boilermakers-union-record-and-briefs. Accessed July 30, 2025.
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JAMFS V,
mlemiaker?*
UNION. E T A L
WILJAMS V
|:{)ILERWAKEH:i
UNION, ETAI.,
i HOMPSON V.
ivmoRE
DRYDOCK CO,
ETAL.
R E C O R D
A N D
i c
S . F . N o . 17,015
In the Supreme Court
OF THE
State of California
J oseph J ames, individually, and in a represen
tative capacity for and on behalf of 1,000
other Negro workers similarly situated,
Plaintiff and Respondent,
vs.
Marinsiiip Corporation (a corporation), L ocal L
U nion No. 6 of I nternational B rotherhood
of B oilermakers, I ron S hipbuilders and
H elpers of America, E d Rainbow, as Busi
ness Agent of said Local 6, and E. Medley,
as President of said Local G,
Defendants and Appellants.
OPENING BRIEF OF APPELLANTS LOCAL UNION No. 6 OF
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIPBUILDERS AND HELPERS OF AMERICA, ED
RAINBOW, AS BUSINESS AGENT OF SAID LOCAL 6, AND
E. MEDLEY, AS PRESIDENT OF SAID LOCAL 6.
Appeal from the Judgment of the Superior Court of
the State of California, in and for the
County of Marin.
Honorable Edward I. Butler, Judge.
Charles J . J anigian,
Flood Building’, San Francisco,
George M. N aus,
Alexander Building, »San Franciscu,
Attorneys for Appellants Local Union No. G
of International Brotherhood of Boiler
makers, Iron Shipbuilders and Helpers
of America, Ed Rainbow, as Business
Agent of said Local G, and E. Medley, as
President of said Local 0.
PKRN ATT" W ALSH PlUNTINU CO ., SAN FlUNCISOO
/
Subject Index
Page
The order appealed from.................................................................. 2
Statement of the ease .................................................................... 7
(a) The plaintiff .......................................................................... 8
(b) The union .............................................................................. 9
(c) The employer and the industry.......................... 14
(d) The master agreement for new ship construction on
the Pacific Coast....................................................... 16
(e) The application of the master agreement to Marinship 23
(f) The employment of Negroes at Marinship Corporation 25
(g) Discharge of workers under the union shop provision
of the master agreement........................................... 27
(h) Notice to government of the Negro controversy at
Marinship Corporation ....................................................... 30
Argument ............................................................................................ 32
I.
The court has no jurisdiction of the subject of the action. . 32
II.
The complaint does not state facts sufficient to constitute a
cause of action and therefore no injunction should have
been granted ................................................. , ............................ 35
(a) There is no jurisdiction to command admission to mem
bership in a union ............................................................... 39
(b) The remaining decretal paragraphs of the temporary
injunction are also contrary to law............................... 50
(c) The Executive Order does not destroy the union shop 74
III.
Even if it be assumed that a cause of action is stated, never
theless the order appealed from is inappropriate.............. 76
IV.
The enforcement by the union of the union shop provision
of the master agreement should not in any event be en
joined without requiring the Negroes to impound in court
the required initiation fees and monthly dues pending
the outcome of the controversy................................................ 79
Table of Authorities Cited
Cases Pages
Acierno v. North Shore Bus Co., 17 N.Y.S. 2d 170.............. 43
Adair v. United States, 208 U.S. 161, 52 L. Ed. 436.......... 61
American Fruit Growers v. Parker, 22 C. 2d 513, 140 Pac.
2d 23 ............................................................................................ 35
Baar v. Smith, 201 Cal. 87, 102, 255 Pac. 827....................... 50
Bethlehem Shipbuilding Corp. v. N.L.R.B., 1 Cir., 114 Fed.
2d 930 .......................................................................................... 32
Buchanan v. Warley, 245 U.S. 60, 62 L. Ed. 149, L.R.A.
1918C 210, Ann. Cas. 1918A 1201................................. 54
Burkhardt v. Lofton, 63 A.C.A. 356, 146 Pac. 2d 720.......... 57
Burks v. Bosso, 180 N.Y. 341, 73 N.E. 58............................... 57
Carroll v. Local 269 International Brotherhood of Electrical
Workers, 31 Atl. 2d 223, 133 N.J. Eq. 144......................... 78
Cassell v. Inglis (1916), 2 Ch. 211........................................... 40
Charles v. Crescent City, 14 C. 2d 234, 93 Pac. 2d 1 2 9 .. . . 80
Coppage v. Kansas, 236 U.S. 1, 59 L. Ed. 441...................... 61
Corrigan v. Buckley, 271 U.S. 323, 70 L. Ed. 969................... 55
De La Ysla v. Publix Theaters (Utah), 26 Pac. 2d 818. . . . 57
Dingwall v. Amalgamated Association of Street Railway
Employes of America, 4 Cal. App. 565, 88 Pac. 5 9 7 .. . . 41
Durkee v. Murphy (Md., 1942), 29 Atl. 2d 253................... 76
E. H. Renzel Co. v. Warehousemen’s Union, 16 C. 2d 369,
373, 106 Pac. 2d 1 ...................................................................... 8,36
Easterbrook v. O’Brien, 98 Cal. 671, 33 Pac. 765.............. 81
Ex parte Plessy, 45 La. Ann. 80, 11 So. 948, 18 L.R.A.
639 ................................................................................................ 52
F. F. East Co. v. United Oystermen’s Union, 130 N. J. Eq.
292, 21 Atl. 2d 799.......................................................................48,68
Faulkner v. Sollazi, 79 Conn. 541, 65 Atl. 947................... 57
Favors v. Randall, 40 Fed. Supp. 743....................................... 79
General Committee, etc. v. M.K.T. Ry., 88 L. Ed. 1 0 4 .. . . 32
General Committee, etc. v. Southern Pacific Co., 88 L. Ed.
112 32
Pages
Goff v. Savage, 122 Wash. 194, 210 Pac. 374....................... 57
Gong Lum v. Rice, 275 U.S. 78, 72 L. Ed. 172................... 51
Greenwood v. Building Trades Council, 71 Cal. App. 159,
233 Pac. 823.................................................................................. 42
Hamer v. Nashawcna Mills (Mass., 1943), 52 N.E. 2d 22 48
Harvey, Inc. v. Sissle, 53 Ohio App. 405, 5 N.E. 2d 410 57
International Association of Machinists v. State (Fla.,
1943) , 15 So. 2d 485........................................................... 34,48,78
J. I. Case Co. v. N.L.R.B., 88 L. Ed. 489 (February 28,
1944) , affirming 134 Fed. 2d 70............................................ 61
Janss Investment Co. v. Walden, 196 Cal. 735, 239 Pac___34, 54
Keller v. American Cyanamid Co., 132 N.J. Eq. 210, 28 Atl.
2d 41 ............................................................................................... 32,33
Lawson v. Hewell, 118 Cal. 613, 49 L.R.A. 400, 50 Pac. 763 41
Los Angeles Investment Co. v. Gary, 182 Cal. 680, 186 Pac.
596, 9 A.L.R. 115........................................................................ 54
Maguire v. Buckley, 301 Mass. 355, 17 N.E. 2d 170.......... 43
Martin v. Danziger, 21 Cal. App. 563, 132 Pac. 284.......... 36
Mayer v. Journeymen Stonecutters’ Association, 47 N.J. Eq.
519, 20 Atl. 492.......................................................................... 41
McGuinn v. Forbes, 37 Fed. 639.................................................... 54
McKane v. Democratic General Committee of Kings County,
25 N.E. 1057, col. 2, 123 N.Y. 609, 20 Am. St. Rep. 785 40
McKay v. Retail Auto Salesmen’s Local Union, 16 C. 2d 311,
106 Pac. 2d 373, certiorari denied 313 U.S. 566, 85 L. Ed.
1525 .......................................................................................... 48
McLean v. The Workers’ Union (1929), 1 Ch. 602.......... 73
Mechanics’ Foundry of San Francisco v. Ryall, 75 Cal. 601,
17 P. 703......................................................................................... 36
Miller v. Ruehl, 2 N.Y.S. 2d 394................................................ 43
Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 83 L. Ed.
208 ................................................................................................. 54
Moses D. Chapman, et al. v. American Legion, et al. (Ala.,
1943), 14 So. 2d 225, 147 A.L.R. 585
Table of A uthorities Cited iii
40
IV Table of A uthorities Cited
Pages
Murphy v. Higgins, 12 N.Y.S. 2d 913, affirmed 23 N.Y.S.
2d 552 .............................................................................................68,78
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 82
L. Ed. 638...................................................................................... 32
National Federation of Railway Workers v. National Media
tion Board, 110 Fed. 2d 529, 537, certiorari denied 310
U.S. 628, 84 L. Ed 1399 ......................................................... 55,64
Newport News Shipbuilding and Drydock Co. v. N.L.R.B.,
4 Cir., 101 Fed. 2d 841................................................................ 32
Newport News Shipbuilding & Drydock Co. v. Schauffier,
303 U.S. 54, 82 L. Ed. 646................................................... 32
N.L.R.B. v. Grower-Shipper Vegetable Association of Cen
tral California, 9 Cir., 122 Fed. 2d 368............................... 50
N.L.R.B. v. Lion Shoe Co., 97 Fed. 2d 448........................... 48
N.L.R.B. v. Newport News Shipbuilding and Drydock Co.,
308 U.S. 241, 84 L. Ed. 219..................................................... 32
N.L.R.B. v. Norfolk Shipbuilding and Drydock Corp., 4
Cir., 109 Fed. 2d 128.................................................................... 32
New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552,
82 L. Ed. 1012............................................................................ 68
Order of Railroad Telegraphers v. Railway Express Agency,
88 L. Ed. 495................................................................................ 60
Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L. Ed. 446 75
Parkinson v. Building Trades Council, 154 Cal. 581, 98
Pac. 1027, 21 L.R.A. N.S. 550, 16 Ann. Cas. 1165.......... 47
People v. Western Fruit Growers, 22 C. 2d 494, 140 Pac.
2d 13 ............................................................................................... 35
Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 85 L.
Ed. 1271, 133 A.L.R. 1217................................................... 50
Piper v. Big Pine School Dist., 193 Cal. 664, 226 Pac.
926 ................................................................................................... 54
Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256..................... 52
San Francisco Gas & Electric Co. v. San Francisco, 164
Fed. 884 ........................................................................................ 80
Schechter v. U.S., 295 U.S. 495, 79 L. Ed. 1570................... 75
Shell Oil Co. v. Richter, 52 C.A. 2d 164, 125 Pac. 2d 930.. 35
Pages
State ex rel. Weaver v. Board of Trustees of Ohio State
University, 126 Ohio St. 290, 185 N.E. 196................... 54
Steele v. Louisville & N. R. Co., the Brotherhood of Locomo
tive Firemen and Enginemen, et al. (Ala., 1944), 16 So.
2d 416 ............................................................................................ 63
Switchmen's Union v. National Mediation Board, 88 L.
Ed. 89 ............................................................................................. 32
Taylor v. Cohn, 47 Or. 538, 84 Pac. 338, 8 Ann. Cas. 527 57
United States v. Hutcheson, 312 U.S. 219, 85 L. Ed. 788 49
United States v. Superior Court, 19 C. 2d 185, 120 Pac.
2d 26 ......................................................................... 32
United Shoe Workers v. Wisconsin Labor Relations Board,
279 N.W. 37.................................................................................. 49
Watson v. Santa Carmelita Mutual Water Co., 58 C. A. 2d
709, 137 Pac. 2d 757...................................................................... 35
Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405........................... 51
Willis v. Lauridson, 161 Cal. 106, 118 Pac. 530................... 8,35
Wilson v. Newspaper and Mail Deliverers’ Union, 197 Atl.
720, 123 N.J. Eq. 347.................................................................. 1$
Weinberger v. Inglis (1919), A.C. 606, affirming (1918) 1
Ch. 517 ........................................................................................... 40
Wyat v. Patee, 205 Cal. 46, 269 Pac. 660........................... 54
Yazoo & M. V. R. Co. v. Sideboard, 161 Miss. 4, 133 So.
669 .................................................................................. 65
Codes and Statutes
Civil Code, §§ 51-54 ........................................................................ 57
Civil Code, § 3521 .......................................................................... 65
Civil Code, § 3536 .......................................................................... 64
C.C.P. §963(2) .............................................................................. 2
Constitution, Article II, section 1 ................................................ 9
29 USC §§151-166......................................................................... 32
29 USC § 1 5 8 . . . . . ......................................................................... 48
45 USC § 152, Fourth................................................................... 60
29 USC § 159(a)............................................................................. 60
Table of A uthorities Cited v
VI Table of A uthorities Cited
Miscellaneous Pages
Bryce, Modern Democracies ....................................................... 63
5 C.J. 1353, § 6 4 ............................................................................ 40
32 C.J. 352, §583.............................................................................35,36
14 C.J.S. 1163, col. 2 ...................................................................... 57
3 Cal. Jur. 349, § 4 ........................................................................ 41
7 C.J.S. 56, § 2 3 .............................................................................. 40
3 Cal. Jur. 350, § 5 .......................................................................... 40
Calverton, An Anthology of American Negro Leiterature,
339.................................................................................................... 65
22 Cyc. 941........................................................................................ 35
Earl Brown, American Negro and the War (Harper’s Maga
zine, April 1942), 545................................................................... 75
Embree, Brown Americans, The Story of a Tenth of the
Nation (Viking Press, 1943), p. 26..................................... 69
Executive Order 8802 .................................................................... 74
Executive Order 8823 .................................................................... 74
Executive Order 9017, dated January 12, 1942........................34,75
Executive Order 9346 .................................................................... 16
Goodwin, The Establishment of State Government in Cali
fornia, ch. VI, “ The Free Negro Question”, pp. 108-132 73
High, Injunctions (4th ed. 1905), § 2 ....................................... 39
Labor Relations Reporter, January 31, 1944, Vol. 13, page
645 .................................................................................................. 76
Leven, The Income Structure of the United States (Brook
ings Institution, 1938), p. 60.................................................... 65
Monthly Labor Review for May and October, 1941.............. 16
Myrdal, An American Dilemma, The Negro Problem and
Modern Democracy (Harper & Bros., 1944), p. 186........ 72
Newman, The Closed Union and the Right to Work, 43
Columbia Law Review 42.................. 61
Northrup, Organized Labor and the Negro, Harper &
Brothers, 1944, ch. I, The General Picture, pp. 1-5.......... 76
Northrup, Organized Labor and the Negro (1944), p. 210 65,70
Northrup, Organized Labor and the Negro, 75-78................... 68
Page
Oakes, Organized Labor and Industrial Conflicts, 45, § 42 42
Ottley, New World A-Coming, 297............................................. 64
Ottley, New World A-Coming (1943), eh. X X ....................... 75
Public Health Bulletin No. 235 (U.S. Treasury Dept., Pub
lic Health Service, 1937).......................................................... 13
14 R.C.L. 307.................................................................................... 80
Roucek, Ideology as a Means of Social Control (Am. Jour.
Economics and Sociology, January, 1944), 179.............. 36
San Francisco Examiner, April 8, 1944, page 7 ....................... 45
Saposs, Readings in Trade Unionism (The Workers'
Library, 1927) pp. 92-93...................................... 67
Spero and Harris, The Black Worker (Columbia University
Press, 1931), p. 136.................................................................... 65
Spero and Harris, The Black Worker, 199-200....................... 67
Supreme Court Rules 5 and 11............................................... 2
The Handbook of Labor Statistics, 1941 edition (U.S. Dept.
of Labor) ...................................................................................... 64
Time Magazine, December 27, 1943, page 19........................... 31
Toner, The Closed Shop (1942), p. 148..................................... 66
T. W. Arnold, Folklore of Capitalism, ch. V II....................... 36
U. S. Code Congressional Service, 1944, No. 1, p. 10.13.. 30
U. S. Dept. Labor Bulletin No. 694, “ Handbook of Labor
Statistics, 1941 edition”, vol. 2, pp. 149-150....................... 16
War Labor Disputes Act, §7 (50 USC supp. § 1507).......... 34
Wesley, Negro Labor in the United States 1850-1925 (Van
guard Press, 1927), ch. I X ...................................................... 65
Table of A uthorities Cited vii
Wolfe, Admission to American Trade Unions (Johns Hop
kins Press, 1912), ch. 6, Admission of Negroes, pp. 112-134 76
...................................................
S. F. No. 17,015
In the Supreme Court
OF THE
State of California
J oseph J ames, individually, and in a represen
tative capacity for and on behalf of 1,000
other Negro workers similarly situated,
Plaintiff and Respondent,
vs.
Marinship Corporation (a corporation), L ocal,
U nion No. 6 of I nternational B rotherhood
of B oilermakers, I ron S hipbuilders and
H elpers of A merica, E d R ainbow, as Busi
ness Agent of said Local 6, and E . Medley,
as President of said Local 6,
Defendants and Appellants.
OPENING BRIEF OF APPELLANTS LOCAL UNION No. 6 OF
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIPBUILDERS AND HELPERS OF AMERICA, ED
RAINBOW, AS BUSINESS AGENT OF SAID LOCAL 6, AND
E. MEDLEY, AS PRESIDENT OF SAID LOCAL 6.
Appeal from the Judgment of the Superior Court of
the State of California, in and for the
County of Marin.
Honorable Edward I. Butler, Judge.
2
May it please the Court:
This is an appeal by defendants Local Union No. 6 of
International Brotherhood of Boilermakers, Iron Ship
builders and Helpers of America, Ed Rainbow, as Busi
ness Agent of said Local 6, and E. Medley, as President
of said Local 6, from an order granting an injunction,
C.C.P. §963(2), against them. There was no oral testi
mony in the lower court, and the record therefore has come
up under Rule 5 (Clerk’s Transcript) and Rule 11 (Sep
arate appeal by co-defendant Marinship Corporation).
THE ORDER APPEALED FROM.
The minute order, T. 57,1 of February 17, 1944, reads:
“ This matter having been heretofore submitted. It
was by the court ordered that a Temporary Injunc
tion be granted plaintiffs and the demurrers of de
fendants overruled and 10 days to answer.”
On the same day the court below signed and filed a pre
liminary injunction, T. 52-56, which Ave copy next below:
“ P reliminary I n jun ctio n .
The above entitled matter having been fully argued on
January 20, 1944, before the above entitled Court, and
thereafter the plaintiff and answering defendants having
filed memoranda of laAv in support of their respective
contentions in the matter, and the cause having thereupon
been submitted to and fully considered by the Court, and
1Wherever this abbreviation appears it means a designated page
of the clerk’s transcript under Rules 5 and 11.
3
The Court being of the opinion that the position of the
plaintiffs as alleged in their complaint, and as admitted
by the demurrers, states a good cause of action, and
The Court being of the further opinion that the actions
of the answering defendants International Brotherhood
of Boilermakers, Iron Shipbuilders and Helpers of
America, Local 6 thereof, and its officers and agents of
which plaintiffs complain, in discriminating against and
segregating Negroes into auxiliary unions, is contrary to
the public policy of the State of California, and
The Court being of the further opinion that a portion
of Section 2 of the Master Agreement which reads as
follows:
‘Employer (Marinship) agrees to hire all workmen
hereunder, in the classifications contained in Schedule
“ A ” hereto attached (Boilermakers classifications)
through and from the Unions (Boilermakers) and to
continue in its employ in said classifications only
workmen who are members in good standing of the
respective unions signatory hereto and affiliated with
and in good standing in the American Federation of
Labor. All workmen employed hereunder shall be
required to present a clearance card from the appro
priate Union before being employed.’
is void as applied to the plaintiffs in this case, and others
similarly situated, and
The Court being of the further opinion that Marinship
Corporation should employ plaintiff and other Negro
workers similarly situated free from the hereinabove de
scribed illegal practices, discriminations and restrictions
of said International Brotherhood of Boilermakers, Iron
4
Shipbuilders and Helpers of America, Local 6 thereof,
and its officers and agents; and
The Court being of the opinion that a preliminary in
junction should issue in behalf of plaintiffs, now there
fore,
It is Hereby Ordered, Adjudged and Decreed pending
the trial of the matter, as follows:
1. The defendants Local No. 6 of the International
Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, Ed Rainbow and E. Medley, and
their officers, agents and representatives are hereby en
joined and restrained from directly or indirectly com
pelling plaintiff and other Negro workers similarly situ
ated to join, become or remain a member of, or pay
initiation fees, dues or other monies to auxiliary A-41 or
any other subsidiary or auxiliary union or organization
of the International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, Local 6 thereof.
2. The defendants Local No. 6 of the International
Brotherhood of Boilermakers, Ed Rainbow and E. Med
ley, and their officers, agents and representatives are
hereby enjoined and restrained from directly or indirectly
compelling, inducing or requesting Marinship to discharge
or refuse to employ plaintiff or any other Negro work
ers similarly situated because plaintiff or any other Negro
workers similarly situated refuse to become or remain
members of, or pay initiation fees, dues, or other monies
to said auxiliary A-41 or any other subsidiary or auxiliary
union or organization of said International;
3. That defendants Local No. 6 of the Internationa]
Brotherhood of Boilermakers, Ed Rainbow and E. Medley,
5
and their officers, agents and representatives are hereby
enjoined and restrained from directly or indirectly object
ing to or preventing the employment at Marinship of
plaintiff or other Negro workers similarly situated be
cause of their non-membership in or refusal to pay ini
tiation fees, dues, or other monies to said auxiliary A-41
or any other subsidiary or auxiliary union or organiza
tion of said International;
4. That defendants Local No. 6 of the International
Brotherhood of Boilermakers, Ed Rainbow and E. Medley,
and their officers, agents and representatives are hereby
enjoined and restrained from directly or indirectly re
fusing to admit into membership in said Local 6 on the
same terms and conditions as white persons, or refusing
to accept tendered initiation fees and dues to said Local
6 from, plaintiff and other Negro workers similarly situ
ated.
5. That defendants Local No. 6 of the International
Brotherhood of Boilermakers, Ed Rainbow and E. Medley,
and their officers, agents and representatives are hereby
enjoined and restrained from directly or indirectly re
fusing to grant, give, or supply job or work clearances
for employment at Marinship to plaintiff and other Negro
workers similarly situated who may apply for or request
same, and who refuse to join or remain members of, or
pay initiation fees, dues or other monies to said auxiliary
A-41, or any other subsidiaiw or auxiliary union or or
ganization of said International;
6. That defendants Local No. 6 of the International
Brotherhood of Boilermakers, Ed Rainbow and E. Medley,
and their officers, agents and representatives are hereby
6
enjoined and restrained from directly or indirectly enforc
ing, or attempting to enforce the By-Laws Governing
Auxiliary Lodges of said International.
I t Is Further Ordered, Adjudged and Decreed pending
the trial of this matter, as follows:
That defendant Marinship Corporation, its officers,
agents, employees, and attorneys are hereby enjoined and
restrained from directly or indirectly discharging or re
fusing to employ or re-employ plaintiff and other Negro
workers similarly situated because they do not have or
present a job or work clearance from, or are not mem
bers in good standing with the said International Brother
hood of Boilermakers, Local No. 6 thereof, or auxiliary
A-41, or any other auxiliary or subsidiary union or or
ganization affiliated to said International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America,
but with the further provision that if said International
Brotherhood of Boilermakers, Local No. 6 thereof, its
officers, and agents indicate their willingness to, and do
accept plaintiff and other Negro workers similarly situ
ated into full membership into said organization and
upon the same terms and conditions and upon an equal
basis with white persons that then and in that event,
plaintiff and said other Negro workers similarly situated
shall be required to and shall obtain and present job or
work clearances to said Marinship Corporation from said
Local No. 6.
I t Is Further Ordered That Surety Bond of $1000.00
be posted.
Dated: February 17, 1944.
Edward I. Butler,
Judge of the Superior Court.”
I
STATEMENT OF THE CASE.
Upon the filing of the verified2 complaint, T. 1-20, on
January 13, 1944, with an accompanying memorandum of
points and authorities, T. 21-23, an ex parte restraining
order issued, T. 24-26, connected with an order to show
cause on January 19, 1944, why a preliminary injunction
should not issue as prayed, T. 26. Demurrers3 to the
complaint raised the issues of law whether the Court had
jurisdiction of the subject of the action and whether the
complaint states facts sufficient to constitute a cause of
action. On the hearing on January 19, 1944, the following
affidavits of the following affiants were received:
1. Wm. E. Walter, International Secretary-Treas
urer of the International Brotherhood of Boiler
makers, Iron Shipbuilders and Helpers of America,
T. 27-29.
2. E. Medley, President of Local No. 6, T. 30-36.
This affidavit incorporates, T. 30, the Constitution
and By-Laws of the Brotherhood as Exhibit A, copied
at T. 62; at T. 31, the By-Laws Governing Auxiliary
Lodges as Exhibit B, copied at T. 63; at T 32 the
Master Agreement covering New Ship Construction,
as Exhibit C, copied at T. 64.
3. Robert Digges, Administrative Manager of Ma-
rinship Corporation, in charge of its industrial rela
2It was verified in the usual form by plaintiff Joseph James be
fore a. notary in San Francisco on January 13, 1944. Although we
have not found a transcription of the verification in the clerk's
transcript, we concede the record fact of verification.
3Demurrer of Marinship Corporation, T. 26a and 26b. De
murrer of present appellants, T. 50.
8
tions and the performance of the union shop agree
ment.
4. Joseph James, plaintiff.4
Therefrom the following facts appeared:
(a) The plaintiff.
Joseph James is a Negro “ citizen of the United
States” , residing in California, employed by “ defendant
Marinship in a trade over which defendants Boilermakers
and Local 6 assert and claim jurisdiction” . He sues as
an individual and as representative of a class of “ ap
proximately 1,000 other Negro workers similarly situ
ated” . They are “ skilled craftsmen in the shipbuilding
trade” and have been employed by Marinship “ for pe
riods ranging in excess of one year for most of said
workers” . (Complaint, IV and V, T. 2 and 3).
At the time of the hearing, Marinship Corporation had
“ approximately 17,000 employes engaged in the con
struction of vessels, of whom approximately 1500 were
Negroes. Of the latter number, approximately 1188 were,
as of December 14, 1943, engaged in performing work
falling within the jurisdiction of the Boilermakers’
i “ Where the verified complaint is the basis for the relief sought,
it takes the place of an affidavit and must be treated as such; and
the facts so stated must stand the test to which oral testimony
would be subjected. Averments which are but conclusions of law
are not competent testimony, though they might stand as a matter
of pleading. Unless the statement in the nature of a conclusion is
supported by the facts or circumstances on which it rests, it is
insufficient to sustain an application for an injunction. If the
complaint, otherwise unsupported, is open to attack on general
demurrer, it is insufficient. Howard v. Eddy, 56 Kan. 498, 43
Pac. 1133; State v. Parsons, 77 Kan. 774, 95 Pac. 391; 22 Cyc.
941 [now 32 C.J. 352, § 583].” Willis v. Lauridson, 161 Cal.
106, 108, 118 Pac. 530, 531, col. 2; E. H. Renzel Co. v. Ware
housemen’s Union, 16 C. 2d 369, 373, 106 Pac. 2d 1, 3.
9
Union” . (Digges, T. 46, lines 5-10.) The Negroes employed
by Marinship Corporation “ are paid the same wages,
work the same hours, and are employed under the same
working conditions as all other workers” , and “ all of
the employment conditions” “ are applied equally and
without discrimination to all employes, regardless of their
race, creed, color or national origin” . (Digges, T. 46,
lines 11-18.) Marinship “ has employed any available and
qualified Negroes” . (Digges, T. 46, lines 4-5.)
(b) The Union.
International Brotherhood of Boilermakers, Iron Ship
builders and Helpers of America “ is an international
labor union and unincorporated association” . (Complaint,
II, T. 1-2.) Its Constitution and By-Laws “ as revised
and adopted at the Sixteenth Consolidated Convention5
held in Kansas City, Missouri, September 13 to 22, 1937” ,
appear at T. 62. At page 4, “ Historical” , it is stated:
“ This International Brotherhood was organized on
October 1st, 1880, at Chicago, Illinois, nine Lodges
being represented at the organization meeting. Sub
sequently the National Brotherhood was organized at
Atlanta, Georgia, May, 1888, and at a special meet
ing called for the purpose at Chicago, September 1st,
1893, both organizations consolidated into one for
the mutual protection of the trades of boiler making
and iron ship building in its various branches. The
Convention held in Greater Kansas City, September,
1930, marks the Fiftieth Anniversary.”
The International Brotherhood is the highest tribunal,
Art. I, sec. 2. I t has an Executive Council “ empowered
Conventions shall be held every four years (Constitution, Arti
cle II, section 1), T. 62.
10
to charter Subordinate District and State Lodges ’ Article
I, sec. 8. I t chartered Local Union No. 6 (Complaint, III,
T. 2, lines 5-14), on January 14, 1916, with territorial
jurisdiction in Marin, San Francisco and San Mateo
Counties. (Medley, T. 30, lines 15-24.)
Prior to the Convention of 1937 Negroes were not ac
cepted into membership, but at that Convention a reso
lution authorized the Executive Council to prepare and
put in effect By-Laws Governing Auxiliary Lodges for
the establishment of separate Negro local lodges, which
was done, effective as of January 1, 1938; and those
By-Laws, as amended July 15, 1942, are in effect. (Med
ley, T. 31, lines 10-24; the By-Laws Governing Auxiliary
Lodges appear at T. 63.) Article I of those By-Laws
reads:
“ Section 1. There is established herewith the la^vs
and regulations governing Auxiliary Lodges as de
fined by the International Brotherhood of Boiler
Makers, Iron Ship Builders and Helpers of America,
in Convention, September 13 to 21, 1937, inclusive,
and as adopted by the International Brotherhood and
Executive Council. These laws and rules shall be
effective as of January 1, 1938 and as amended July
15, 1942. These laws and regulations are subject to
change by the International Executive Council and
recorded through authority of the International
Brotherhood. These laws and regulations shall con
stitute full and complete membership rights and privi
leges for Auxiliary Lodges and members.
Sec. 2. All Auxiliary Lodges shall be in affiliation
with the International Brotherhood and shall not be
dissolved except by and with the authority of the
International Brotherhood.
11
Sec. 3. The International Brotherhood and Execu
tive Council shall have full jurisdiction and author
ity over Auxiliary Lodges and is the highest tribunal
of such Lodges.
Sec. 4. The International President shall have
direction and supervision of all Auxiliary Lodges
with power to suspend their Officers, individual mem
ber or members, and any and all Lodges, when in
his judgment, it is for the best interest of the Lodge
or the International Brotherhood. He shall have
power to approve or disapprove Charters for mem
bership, all of this to be done by and with the ad
vice of the International Executive Council.
Sec. 5. There shall be cooperation between Auxil
iary Lodges and Supervising Lodges and of the In
ternational Brotherhood. They shall be expected to
confer and collaborate.
Sec. 6. Auxiliary Lodges are chartered and mem
bership issued with the understanding that such
Lodge and membership shall be governed by the laws
and regulations established herein by the Interna
tional Executive Council, by authority of the Inter
national Convention.
Sec. 7. Where a sufficient number of persons, with
the prescribed qualifications, reside in the 1 nited
States Territories or Possessions, or Canada, possess
ing the qualifications required by the International
Brotherhood, they may apply for and be granted a
Charter for the establishment of an Auxiliary Lodge
under the supervision of the Supervising Lodge hav
ing a Charter covering the industry or plant where
such Auxiliary Lodge is organized. The jurisdiction
of an Auxiliary Lodge cannot extend beyond the ju
risdiction of the Supervising Lodge.”
12
Thereunder, a Negro lodge, Local A-41, was chartered on
August 14, 1943, and has existed and functioned continu
ously since. (Medley, T. 30, line 25 to T. 31, line 9.) The
By-Laws Governing Auxiliary Lodges, Article VII, sec. 1,
provide:
“ An applicant for membership must be a colored
male5* citizen of some civilized country, between the
ages of sixteen (16) and sixty (60) years, working at
some branch of the trade at the time of making appli
cation. He will be considered a member when his
signed application and fee is received, approved and
recorded in the Office of the International Secretary-
Treasurer. * *”
Local No. 6 is the Supervising Lodge over auxiliary Local
A-41. Negroes are not admitted into membership in Local
No. 6. (Complaint, VIII, T. 5, lines 5-7.) The complaint
says that Negro members of auxiliary Local A-41 do not
possess “ equal rights or privileges” with the members
of supervising Local No. 6, the inequalities being listed
by the plaintiff James as follows (Complaint, X, T. 7
and 8):
5aAnd seethe word “ male” in the Constitution and By-Laws, T.
62, in Article VI, section 1, at By-Law page 65. Since this suit
was commenced, the Convention deleted the word “ male” . A
humorous press account stated:
“ It may or may not be getting to be more and more a
woman’s world BUT------
The advent of women welders, burners, etc., to the Nation’s
shipyards has forced the Boilermakers’ Union, in national
convention at Kansas City, Mo., to remove all reference to the
word ‘male’ from the organization’s constitution.
The broad-shouldered male delegates at the convention voted
the rephrasing to ‘legalize membership of more than 40,000
women members who have taken up shipyard work during
the past two years, according to press dispatches.”
13
1. Local 6 controls, manages and supervises all of
the affairs and business of Auxiliary A-41;
2. Auxiliary A-41 has no voice, authority or au
tonomy with respect to the management of its own
affairs or in dealing with the employers of its mem
bers;
3. Auxiliary A-41 neither has nor is allowed a
business agent to act for its members, but must seek
representation through the business agents of Local 6,
who refuse to act for the members of said Auxiliary
4. Auxiliary A-41 neither has nor is allowed a
grievance committee to redress complaints with its
employers, whereas Local 6 has such a grievance
committee.
5. The members of Auxiliary A-41 cannot obtain
a change of classification of their work, that is, from
helper to journeyman, without the approval of said
Local 6.
6. The members of Auxiliary A-41 are allowed
death and disability benefit payments or insurance
amounting to but fifty per centum of that allowed the
members of Local 6.° 6
6For Negro actuarial and insurance cost experience, Negrc
mortality and diseases, and differentials between Negroes and
others, see affidavit of Walter, T. 27-29. We quote from Public
Health Bulletin No. 235 (U.S. Treasury Dept., Public Health
Service, 1937) : “ The ratio of colored to white mortality is higher
in urban than in rural areas except in the age groups 5 to 14
and 65 years and over. The largest differences occur between 15
and 54 years of age” (p. 13); “ Though the environment of the
Negro is not similar to that of the white population of the
United States, nevertheless, differences in mortality which may
be due to racial characteristics cannot wholly be disregarded”
(p. 2) ; “ That mortality is high among them is obvious” (p. 1) ;
“ In the South the ratio of colored to white mortality at all ages
is 1.7, while in the North it is 1.9” (p. 17); “ The United States
A-41.
14
7. The members of Auxiliary A-41 may be dis
patched to employment only through the agency of
Local 6 and the negro workers are thereby subjected
to discrimination in employment opportunity by
Local 6.
8. Auxiliary A-41 is not allowed voice or vote in
the affairs of its supervising lodge Local 6.
9. That Auxiliary A-41 is a union in name only.
That it performs no services for its members and
grants them no benefits. That it is merely an agency
for exacting tribute from the Negro workers at Ma-
rinship. That it is purely and simply taxation and
segregation without representation.
10. That Negroes are segregated and assigned to
Auxiliary A-41, said organization containing only
Negroes, and Negroes are not allowed to become or
remain members of Local 6.
(c) The employer and the industry.
Defendant Marinship Corporation is a Nevada corpo
ration with principal place of business in Marin County.
(Complaint, 1, T. 1.)
As of March 12, 1942, W. A. Bechtel Co., a Nevada
corporation, entered into a contract with the United
States of America, represented by the United States Mari
time Commission, for the construction of shipyard facili
census of 1930 shows that there were 11,891,143 Negroes in the
United States, an increase of 1,428,012 or 13.6 percent since the
census of 1920. Of the total Negro population, 20 percent were
in the North, 79 percent in the South and 1 percent in the West
[‘The W est’ includes the Mountain and Pacific groups of States].
With respect to urbanization the Negro population of the South is
similar to the white; 32 percent of Negroes and 35 percent of
whites were in cities with populations of 2,500 or over in 1930
and 68 percent and 65 percent respectively were in rural areas”
(P- 3).
ties at Sausalito, California. At the same time, the same
parties entered into a contract providing for the construc
tion by W. A. Bechtel Co. of 34 Liberty ships. (This num
ber was subsequently reduced to 15 so as to permit the
commencement of construction of tankers.)
For the purpose of performing the aforesaid contracts
with the United States Maritime Commission, W. A.
Bechtel Co. and others formed a joint venture known as
W. A. Bechtel Co. (Marin Shipbuilding Division); said
joint venture immediately entered upon the performance
of said contracts, and continued the performance thereof
until November 1, 1942. In the meantime, Marinship Cor
poration was organized under the laws of the State of
Nevada, and qualified to do business in the State of Cali
fornia. As of October 9, 1942, Marinship Corporation
entered into a contract with the United States Maritime
Commission for the construction of 22 tankers, said con
tract providing for the construction of such tankers in
the shipyard and facilities constructed by W. A. Bechtel
Co. (Marin Shipbuilding Division). As of November 1,
1942, all of the operations at said shipyard were under
taken by Marinship Corporation, the operation of the
shipyard and facilities being transferred, as of that date,
to Marinship Corporation.
Since November 1, 1942, Marinship Corporation has
operated said shipyard and facilities, which belong to the
United States Maritime Commission, for said Commis
sion, and has constructed various vessels at said shipyard
for said Commission.
Thereafter, as of June 10, 1943, Marinship Corporation
entered into a further contract with the United States
16
Maritime Commission for the construction of 18 addi
tional tankers, and on the same date entered into a further
contract with said Commission for 24 tankers.
In the performance of said contracts on behalf of the
United States of America, Marinship Corporation has
procured materials, equipment and supplies from all parts
of the United States and has transported the same within
the State of California, and as the result thereof, Marin
ship Corporation has been and is now engaged in inter
state commerce.
In accordance with the requirements of Executive Order
No. 9346, or a similar Executive Order which preceded it,
all of the contracts of Marinship Corporation with the
United States Maritime Commission have provided, among
other things, as follows:
“ The Contractor agrees that in the performance of
work hereunder it will not discriminate against any
worker because of race, creed, color or national origin
and will require all subcontractors to agree not to so
discriminate against any worker.”
{Digges, T. 37, line 22 to T. 39, line 19.)
(d) The Master Agreement for New Ship Construction on the
Pacific Coast.
Since April 23, 1941, a Master Agreement7 has been in
effect. (Complaint, VI, T. 3, lines 12-25.) I t is dated April
7U.S. Dept. Labor Bulletin No. 694, “ Handbook of Labor
Statistics, 1941 edition”, vol. 2, pp. 149-150, abstracting articles
in Monthly Labor Review for May and October, 1941:
“ Nation-wide stabilization of the shipbuilding industry for
the duration of the emergency was established in 1941 under
agreements ratified by shipbuilding firms and unions on the
Atlantic and Pacific Coasts and in the Great Lakes and Gulf
Coast regions.
Each agreement is for 2 years and was approved by the
Office of Production Management, the United States Navy,
17
1, 1941, and is in the Transcript at page 64. The back
ground of the agreement is as follows:
In the latter part of 1940, when the Emergency Ship
building Program was in its initial stages, one of the
and the Maritime Commission. At the end of 1 year wage
rates are subject to adjustment on the basis of changes in the
cost of living. Machinery is provided to settle grievances,
and strikes and lock-outs are banned. Limitation on produc
tion is forbidden.
The principal features of the agreement for the West Coast
are: (1) A basic hourly wage rate of $1.12 for skilled me
chanics; (2) an 8-liour day and 40-liour week (Monday to
Friday unless local conditions require other arrangement)
with time and one-half pay for work on Saturdays (since
intent is 6 days of operation per week) and double pay for
overtime on Sundays and holidays; (3) shift work on a
specified schedule; (4) prohibition of strikes and lock-outs;
(5) provision against limitation of production; (6) machinery
for settling disputes; (7) continuation of the agreement for
the duration of the national emergency or 2 years, whichever
is longer, with provision for review and adjustment of wage
scales; and (8) apprentice training-.
The agreement for the Atlantic Coast shipbuilding industry
specifies a basic hourly wage rate of $1.12 for first-class
skilled mechanics, with corresponding percentage changes for
other employees. Pay for overtime in excess of the standard
40-hour week is at time and one-half with double time for
work performed on Sunday and holidays.
For Great Lakes shipyards a basic hourly wage of $1.12 is
fixed for the standard first-class mechanics, with correspond
ing percentage increases for all other hourly paid employees.
Shift work is permitted with a 40-cent differential for second-
and third-shift workers for each full-shift period.
Time and a half if authorized for work in excess of 8
hours in 1 day or 40 hours in 1 week, and for all Saturday
work, with double time for Sundays and holidays.
Restrictions are imposed on the use of ‘premium men’.
Premiums being paid for special skills above basic mechanic’s
wage will be maintained, but neither the number of premium
men nor the amount of the premium may be increased with
out official Navy and/or Maritime Commission approval.
In Gulf Coast shipyards, the basic wage is $1.07 an hour
for standard skilled mechanics, with ‘equitable raises’ for
other employees, a 40-eent additional payment for second and
third shifts, time and one-half for overtime, with double time
on Sundays and holidays, and double time for all ship repair
except large Government conversion jobs.”
18
Government agencies which was a predecessor of the
present War Production Board, established a Government
agency known as the Shipbuilding Stabilization Commit
tee. This Committee was made up of representatives of
the Government procurement agencies engaged in ship
building, representatives of the shipbuilding industry, and
representatives of the shipyard labor organizations. The
purpose of the Committee was to establish, so far as
possible, stabilized shipyard labor conditions in the United
States. To accomplish this purpose, the Shipbuilding
Stabilization Committee divided the United States into
four zones: the Pacific Coast, the Atlantic Coast, the Great
Lakes, and the Gulf Zones. The first Zone Conference
was convened on the Pacific Coast in the early part of
February, 1941. Said Conference was held under the
auspices of the Shipbuilding Stabilization Committee and
was attended by representatives of the Government pro
curement agencies, the shipbuilding industry and ship
yard labor on the Pacific Coast. The purpose of the Con
ference was to permit Government, Management and
Labor to negotiate a set of stabilized working conditions
for the shipbuilding industry in the Pacific Coast Zone.
By direction of the Shipbuilding Stabilization Committee,
Management was represented in the negotiation of such
standards by representatives of those shipyards on the
Pacific Coast having collective bargaining agreements
with the various labor organizations affiliated with the
Metal Trades Department of the American Federation of
Labor, and Labor was represented by the said Metal
Trades Unions, it having been determined by the Ship
building Stabilization Committee that the American
Federation of Labor Unions were the predominant ship
building unions on the Pacific Coast.
19
When the representatives of Management and Labor,
selected as aforesaid, commenced their negotiations, it
was decided that they would follow the procedure of
negotiating a master agreement covering the construction
of new vessels, since practically all of the existing ship
yard labor agreements on the Pacific Coast were then up
for the negotiation of renewal agreements, and that the
stabilization standards for the Pacific Coast could then
be extracted from such agreements. Accordingly, the
representatives of Management and Labor, with the as
sistance of the Government agencies, including the United
States Maritime Commission, the Navy Department, the
Shipbuilding Stabilization Committee acting on behalf of
the War Production Board or its predecessor, the Office
of Production Management, and the Department of Labor,
proceeded to negotiate a Master Agreement for New Ship
Construction on the Pacific Coast. Such agreement, to
gether with a set of stabilization standards extracted
therefrom, was finally completed on April 2, 1941 and
thereafter submitted to Government, Management and
Labor and approved by them. Accordingly, the Ship
building Stabilization Conference hereinabove referred to
was reconvened at Seattle, Washington, on April 23, 1941,
and at that time the Shipbuilding Stabilization Standards
were ratified by Government, Management and Labor, and
the Master Agreement for New Ship Construction on the
Pacific Coast was executed by the management of practi
cally every shipyard on the Pacific Coast and by the
Metal Trades Department of the American Federation
of Labor, a number of International Unions, including
the International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, affiliated with said
20
Department, the Pacific Coast Metal Trades Council, and
the local Metal Trades Councils in the locality where the
particular shipyard was located.
(Digges, T. 39, line 22 to T. 42, line 17.)
The signatories on the part of the labor unions are as
follows (pp. 17-19 of the Exhibit at T. 64):
“ The Metal Trades Dept, of the American Federa
tion of Labor and its Affiliates, By J. P. Frey, Gen
eral President.
The Pacific Coast District Metal Trades Council,
By Anthony Ballerini, President; By M. H. Stafford,
Secretary.
The Seattle Metal Trades Council, by Ed. Weston.
The Tacoma Metal Trades Council, By Wallace
Morrissette.
Portland Metal Trades Council, By Tommy Ray.
Bay Cities Metal Trades Council, By Ed. Rainbow.
Los Angeles Metal Trades Council, By Matt Koch.
International Brotherhood of Blacksmiths, Drop
Forgers & Helpers, By F. H. Weibel.
International Brotherhood of Boilermakers, Iron
Shipbuilders & Helpers of America, by 0. W. Mur-
sener, International Vice-Pres.
International Brotherhood of Electrical Workers,
By A. H. Feely.
International Union of Operating Engineers, By 0.
W. Carter.
International Hod Carriers’ Building & Common
Laborers’ Union of America, By Joseph Marshall.
International Association of Machinists, By Geo.
C. Castleman.
21
Metal Polishers, Buffers, Platers & Helpers Inter
national Union, By M. H. Stafford.
International Holders & Foundry Workers Union
of North America, by J. P. Frey, Pres.; Fred Kruse,
Sec.
Pattern Makers League of North America, By M.
A. Koch.
United Association of Journeymen Plumbers &
Steamfitters of U. S. and Canada, By Win. C. O’Neill,
International Representative.
Sheet Metal Workers International Association, By
C. C. Clise.
United Brotherhood of Carpenters & Joiners of
Amercia, By Don Cameron.
Brotherhood of Painters, Decorators & Paper-
hangers of America, By Victor liudin.
International Federation of Technical Engineers’,
Architects’ & Draftsmen’s Unions, By Foster J.
P ratt.”
Those signatories are affiliates of American Federation
of Labor. (Medley, T. 32-33.) Articles 1 and 2 of the
Master Agreement read as follows:
“ 1. Scope of Agreement. This agreement shall
apply to all work and activities of the Employer in
connection with the construction of new vessels on
the Pacific Coast in connection with the National
Defense Program, including new vessels to be con
structed for the U. S. Navy, U. S. Maritime Commis
sion, and for foreign governments with the approval
of the United States Government.
A ‘new vessel’ shall be construed to be any newly-
constructed floating structure prior to its completion,
22
final acceptance and employment in the service for
which it has been constructed. ‘Construction of new
vessels’ (as differentiated from repair) shall include
substantial rebuilding of a vessel prior to service in
order to adapt it to a use different from that for
which it was previously planned, and shall not be
deemed as repair work until such vessel has made a
passenger or cargo-laden voyage.
2. Hiring of Men. Employer agrees to hire all
workmen it may require hereunder, in the classifica
tion contained in Schedule ‘A ’ hereto attached,
through and from the Unions and to continue in its
employ in said classifications only workmen who are
members in good standing of the respective Unions
signatory hereto and affiliated with and in good
standing in the American Federation of Labor. All
workmen employed hereunder shall be required to
present a clearance card from the appropriate Union
before being employed.8
The Unions agree, on requisition of the Employer,
to furnish competent workmen in the classifications
contained in Schedule ‘A ’ for the prosecution of the
work covered by this agreement. The Employer may
refuse to employ and may discharge any employee
for any just and sufficient cause.
Unions agree that the workmen to be furnished to
the Employer under this agreement shall be willing
to, and shall, submit to the making of such records
for the purposes of identification as are, or may be,
required by the United States Government in connec
tion with the National Defense Program.
Only citizens of the United States need be employed
and the employer shall have the right to require satis
factory evidence of such citizenship.
8This paragraph copied in the Complaint, VI, T. 3, lines 12-25.
23
If, after Employer has placed requisitions for
workmen with the Unions signatory hereto, the
Unions shall fail to supply competent workmen within
forty-eight (48) hours thereafter, Employer shall be
free to hire the necessary workmen when and where
it chooses without regard to Union membership; pro
vided, however, that such workmen, so employed,
shall be required to secure a clearance card from the
appropriate Union before starting work.
In the event such workmen fail to make application ,
to the appropriate Union within the period of time
prescribed by such Union, they shall be replaced by j
members of appropriate Union when they become
available. ’ ’
(e) The application of the Master Agreement to Marinship.
While W. A. Bechtel Co. (Marin Shipbuilding Division)
was still engaged in the completion of the shipyard and
shipyard facilities, it commenced the work of constructing
Liberty ships. Thereafter, and on or about June 15, 1942,
the Bay Cities Metal Trades Council, being the local
Metal Trades Council for the San Francisco Bay area of
the Metal Trades Department of the American Federation
of Labor, demanded that it and its affiliated organizations
be recognized by W. A. Bechtel Co. (Marin Shipbuilding
Division) as the collective bargaining representative for
the shipyard labor engaged in the construction of vessels
at the Sausalito yard. In support of this demand, the
above mentioned labor organizations submitted evidence
of their right to represent such workers. The manage
ment checked the authenticity of such evidence and by
examination of its records determined that the Bay Cities
Metal Trades Council and its affiliated organizations had
24
been selected by a majority of such workers as their col
lective bargaining representative. Accordingly, the man
agement recognized said organizations as such collective
bargaining representative.
Thereupon these labor organizations demanded that the
management execute a Master Agreement for New Ship
Construction on the Pacific Coast.
The management of the Sausalito yard was quite con
versant with the operation of said Master Agreement, for
the reason that the Bechtel interests were also in direct
charge of the operations of California Shipbuilding Cor
poration at Terminal Island, Los Angeles, California,
which shipyard had been operating under the terms of
said Master Agreement since on or about May 27, 1941.
Furthermore, the Bechtel interests were associated with
a number of other firms which were then operating ship
yards at Richmond, California and Portland, Oregon for
the United States Maritime Commission and which were
also parties to said Master Agreement. Based on the
knowledge thereby acquired as to the working of said
Master Agreement, the management of the Sausalito yard
was of the considered opinion that the execution of the
Master Agreement was in the best interests of maximum
production of ships. In this connection, the management
was cognizant of the fact that the Metal Trades Unions
of the American Federation of Labor constituted the sole
and exclusive source of competent and experienced ship
yard workers in the San Francisco Bay area. It was the
judgment of the management that inasmuch as all other
shipyards in the San Francisco Bay area were then work
ing under the terms of the Master Agreement, it was
25
necessary and advisable that the Sausalito yard work
under the same agreement.
Accordingly, W. A. Bechtel Co. (Marin Shipbuilding
Division) complied with the demand presented to it by
the collective bargaining representative of its employees
and executed the Master Agreement for New Ship Con
struction on the Pacific Coast, which, as noted above,
contained, in Section 2, a provision for a union shop.
Based on its operations to the present date, the judgment
of the management that maximum production of ships
would be best served by the execution of said Master
Agreement has been confirmed and substantiated by ac
tual experience.
When Marinship Corporation assumed the operations
at the Sausalito yard as of November 1, 1942, it assumed
the Master Agreement theretofore entered into by W. A.
Bechtel Co. (Marin Shipbuilding Division), and ever since
that date has performed said agreement, as have the
labor organizations parties thereto.
(Digges, T. 42, line 19 to T. 44, line 25.)
(f) The employment of Negroes at Marinship Corporation.
Consistent with its policy of nondiscrimination because
of race, creed, color or national origin, Marinship Corpo
ration has employed any available and qualified Negroes.
At the present time, Marinship Corporation has approxi
mately 17,000 employees engaged in the construction of
vessels, of whom approximately 1500 are Negroes. Of
the latter number, approximately 1188 were, as of De
cember 14, 1943, engaged in performing work falling
within the jurisdiction of the Boilermakers Union.
26
The Negroes employed by Marinship Corporation work
under the terms of the Master Agreement and are paid
I the same wages, work the same hours, and are employed
under the same working conditions as all other workers,
| irrespective of race, creed, color or national origin. In
fact, all of the employment conditions at Marinship Cor
poration are applied equally and without discrimination
to all employees, regardless of their race, creed, color or
national origin.
So far as the union shop provisions of the Master
Agreement are concerned, they are likewise applied by
Marinship Corporation without discrimination by reason
of race, creed, color or national origin. A white man,
just as a black or brown man, cannot obtain employment
at Marinship Corporation in the classifications of work
subject to the Master Agreement unless he presents a
clearance card from the appropriate union before being
employed. This is true as to Christian, Jew and atheist.
Similarly, a white man, just as a black or brown man,
cannot continue in the employ of Marinship Corporation
in a classification of work subject to the Master Agree
ment unless the man remains a member in good standing
of the appropriate union. This is also true as to Chris
tian, Jew and atheist, and all other persons, of whatever
belief.
(Digges, T. 46 and 47.)
The union dispatches workers for employment “ through
the medium and agency of Local 6” . (Complaint, VIII,
T. 5, lines 3-5.) I t dispatched the plaintiff Joseph James
and his class of approximately 1,000 Negro workers.
(Complaint, IX, T. 5, line 25 to T. 6, line 3; complaint,
27
IV, T. 2, lines 21-26.) They have been working in the
shipyard “ in excess of one year for most of said work
ers” . (Complaint, V, T. 3, lines 2-5.)
(g) Discharge of workers under the union shop provision of the
Master Agreement.
So far as employees who are subject to the Master
Agreement and who fail to remain members in good
standing of the appropriate union are concerned, the
procedure followed by Management and Labor is that the
unions notify Management of the employees who have
failed to maintain good standing. Thereupon, before per
forming the provisions of the union shop clause and dis
charging said employees, Management notifies the em
ployees concerned that they must reinstate themselves in
good standing or be discharged within 48 hours. Unless
the employee clears himself within this period of time,
he is then discharged, as required by the union shop
clause of the Master Agreement.
Marinship Corporation does not look behind the notice
from the union that an employee is no longer in good
standing. The management has been advised by its a t
torneys that inasmuch as the Corporation is engaged in
interstate commerce, it is subject to the provisions of the
National Labor Relations x\ct, which provides, among
other things, that it is an unfair labor practice for an
employer to interfere with the administration of any
labor organization, and that Management is therefore
prohibited from inquiring into the reasons why a par
ticular employee is no longer in good standing with his
union. As a result, Marinship Corporation accepts at
face value, as it believes it must, the notices from the
28
unions that a particular employee is no longer in good
standing. However, as a precautionary measure, the em
ployees are given the 48-hour notice hereinabove referred
to, within which to straighten out the situation between
themselves and the union.
(Digges, T. 47, line 7 to T. 48, line 7.)
On January 11, 1944, Marinship notified plaintiff and
some of his class members that they would be discharged
within 48 hours unless they were cleared by the union,
i.e., “ became and remained members in good standing of
said auxiliary A-41” . (Complaint, XII, T. 10, lines 14-19.)
So far as the Negroes at Marinship Corporation are
concerned, the only source of trouble that Marinship Cor
poration is aware of is a controversy existing between
the Negro employees and the Boilermakers Union as to
whether the Negroes are entitled to membership in the
regular Subsidiary Lodges of the Boilermakers Interna
tional Union or should be required to be members of an
Auxiliary Lodge for Negroes. Since this controversy in
volves the internal affairs of the Boilermakers Union,
Marinship Corporation has refrained from taking a posi
tion one way or the other in this controversy, and, pur
suant to the requirements of the National Labor Relations
Act, has wholly refrained from interfering with the ad
ministration of the internal affairs of the Boilermakers
Union. There has been no concert of action between
Marinship Corporation and the Boilermakers Union.
Marinship Corporation is without right or power to
change the by-laws or other internal regulations of the
Boilermakers Union.
29
Marinship Corporation has received notices from the
Boilermakers Union that certain Negroes are not mem
bers in good standing in that Union. Pursuant to its
policy, applicable to all employees, whether white, black
or brown, of accepting such notices at face value and of
refraining from interfering with the internal affairs of
any labor organization, Marinship Corporation has per
formed its obligations under the union shop clause of
the Master Agreement in the case of Negroes as it has
in the case of white men.
(Digges, T. 48, line 8 to T. 49, line 7.)
The discharge of plaintiff and others working at the
Marinship yards in violation of the Master Agreement
is not harmful to the war effort but on the contrary the
employment of the plaintiff and other Negro workers in
the yard in violation of the Master Agreement will cause
unrest and dissatisfaction among the approximately
15,000 white employees and the continued employment
of non-union Negro workers at Marinship yard in viola
tion of the union shop agreement will cause serious dis
ruption in the work of the yard and will thus seriously
hamper the war effort and such action will tend to in
tensify, rather than alleviate, racial disunity and foster
race hatred. (Medley, T. 35, lines 10-21.)
The plaintiff James and his Negro class members
“ have refused and will continue to refuse to join” or
pay dues to the auxiliary Local A-41, “ but are ready,
able and willing to join” and pay dues to Local 6. (Com
plaint, XIII, T. 11, lines 3-8.) They commenced this suit
for an injunction on January 13, 1944, T. 1.
30
(h) Notice to Government of the Negro controversy at Marin-
ship Corporation.
The management of Marinship Corporation has kept
the United States Maritime Commission advised of the
aforesaid controversy between the Boilermakers Union
and the Negro employees, and of the policy and proce
dure of Marinship Corporation in connection therewith,
as related above. Notwithstanding the fact that all of its
contracts with the United States Maritime Commission
provide that the Commission may terminate such con
tracts in the event of a default of the contractor in failing
to perform any of its covenants under said contracts, the
Maritime Commission has at no time notified Marinship
Corporation that it has violated the nondiscrimination
clause of said contracts, nor has Marinship Corporation
at any time been instructed by the Maritime Commission
to refrain from performing the union shop provisions of
its labor agreement. (Digges, T. 49, lines 9-23.)
And so we come to the penultimate paragraph of the
Complaint which rounds out the story by saying (T. 12,
lines 9-22):
“ That heretofore, to wit, within the past few weeks
and days, various agencies of the United States Gov
ernment, namely, the Fair Employment Practices
Committee0 through its National Chairman, Malcolm
°U.S. Code Congressional Service, 1944, No. 1, page 10.13 :
“ Committee on Fair Employment Practice. Established in
Office of Production Management by Ex. Ord. No. 8802, June
25, 1941, 6 F.R. 3109, U.S. Code Cong. Service, 1941, p. 860.
Amended by Ex. Ord. No. 8823, July 18, 1941, 6 F.R. 3577,
U.S. Code Cong. Service 1941, p. 863, and Ex. Ord. No. 9111,
March 25, 1942, 7 F.R. 2330, U.S. Code Cong. Service 1942,
p. 1235. Transferred from War Production Board to War
Manpower Commission by President’s letter of July 30, 1942,
31
Ross,7 * * 10 and through its Regional Chairman, Harry
Kingman, the United States Maxitime Commission
through its National Chairman, Admiral Emery C.
Land, and the War Manpower Commission, have all
requested the Boilermakers and said Local 6 to desist
from seeking and compelling the discharge by Marin-
ship of Negro workers because the latter refused to
join the disenfranchised, Jim Crow auxiliary A-41,
but the defendants have refused and still refuse to
abide by or honor and obey the requests of said
agencies of the United States Government. That
defendants have defied and continue to defy [the
precatory ‘directive’ of Mr. Ross under a non-legis
lative branch of] the United States Government.
That the only redress available to plaintiff and other
Negroes similarly situated is through and in the
civil courts.”
As we disagree as to availability of “ redress” in “ the
courts” , we turn to the argument.
7 F.R. 6239, U.S. Code Cong. Service 1942, p. 1038. New
Committee on Fair Employment Practice established by Ex
Ord. No. 9346, May 27, 1943, 8 F.R. 7183, U.S. Code Cong.
Service 1943, p. 46.”
10Time. Magazine, December 27, 1943, page 19:
“ FEPC, itself, was established as the result of a Negro
threat in 1941 to march 50,000 strong on Washington. The
threatener: Florida-born, New York-educated A. (for Asa)
Philip Randolph, 54, who though no porter himself, runs the
airtight sleeping car porters union. He has been the main
author of the relentless pressure on FEPC ever since. In
political terms, if FEPC moves forward, it is damned by
Southern Democrats; if it stands still, it receives the. scorn of
the Negro population—and may lose the all-important Negro
vote.
At least once before, Franklin Roosevelt has been able to
finesse the question; in July 1942, he turned FEPC over to
WM Czar Paul McNutt, who conveniently forgot to take any
action. But Mike Ross, one of the original bright boys of the
early New Deal, has no intention of treading water. A Hotch
kiss & Yale graduate, onetime miner, newsman and author
(Death of a Yale Man), Mike Ross believes in FE PC ’s prin
ciples. Franklin Roosevelt cannot outwait this one.”
32
ARGUMENT.
I .
THE COURT HAS NO JURISDICTION OF THE
SUBJECT OF THE ACTION.
1. The shipbuilding shown by the case at bar clearly
affects interstate commerce substantially, Newport News
Shipbuilding and Drydock Co. v. N.L.R.B., 4 Cir., 101
Fed. 2d 841, accepted as to this point in N.L.R.B. v.
Newport News Shipbuilding and Drydock Co., 308 U.S.
241, 244, 84 L. Ed. 219, 222-223; N.L.R.B. v. Norfolk
Shipbuilding and Drydock Corp., 4 Cir., 109 Fed. 2d 128;
Bethlehem Shipbuilding Corp. v. N.L.R.B., 1 Cir., 114
Fed. 2d 930. I t is therefore under the National
Labor Relations Act. (29 USC §§ 151-166.) Thereunder,
the National Labor Relations Board is empowered to
issue “ cease and desist” orders, § 10(c). “ This power
shall be exclusive” , § 10(a). To the extent that a labor
controversy is within the jurisdiction of the Board,
§ 10(a) clearly shows the intent of Congress to deprive
Courts of jurisdiction. It is an intent that such contro
versies be not justiciable, Switchmen’s Union v. National
Mediation Board, 88 L. Ed. *89, General Committee, etc.
v. M.K.T. Ry., 88 L. Ed. *104, General Committee, etc. v.
Southern Pacific Co., 88 L. Ed. *112, and therefore Courts
are without jurisdiction, when the labor controversy “ af
fects commerce” , as shipbuilding clearly does, Myers v.
Bethlehem Shipbuilding Corp., 303 U.S. 41, 82 L. Ed. 638,
Newport News Shipbuilding & Drydock Co. v. Scliauffler,
303 U.S. 54, 82 L. Ed. 646. See the discussion in United
States v. Superior Court, 19 C. 2d 185, 120 Pac. 2d 26, in
the light of the holding in Keller v. American Cyanamid
Co., 132 N.J. Eq. 210, 28 Atl. 2d 41. There, a discharged
33
employe sued the employer and the union to enjoin the
enforcement of the collective agreement entered into be
tween the employer and the union, containing a “ mainte
nance of membership” clause, and providing that the
employer would take “ appropriate disciplinary action”
in the case of any employe who “ engages in any activity
in the plant calculated to undermine the status of the
Union as the bargaining agency” . The complainant was
discharged thereunder by the employer on the invitation
of the union. The complainant insisted that the quoted
provision of the collective agreement held by the union
was “ unfair and indeed invalid” , but the Court said (28
Atl. 2d at 43, col. 2):
“ It may be inferred that without it the company
and the union would not have composed their differ
ences. To annul it might overthrow the existing ac
cord between the company and its union employees.”
The employe’s bill for an injunction was dismissed as to
both employer and union, the state Court saying inter
alia (28 Atl. 2d at 45, col. 1):
“ A survey of the point of jurisdiction immediately
exposes the infeasible character of an assumed juris
diction by state courts of such a controversy. Multiple
interpretations and decisions, perhaps divergent and
conflicting, might ensue concerning identical or simi
lar clauses of such contracts. The recurring conflict
involving the scope of federal powers as they relate
to interstate commerce would be aggravated. The
state court in abrogating a cohesive part of such a
labor contract would destroy the established harmoni
ous relationship between the parties and yet lack au
thority to control or abate the resultant upheaval, all
of which powers are possessed by the federal agencies.
The manifest object of the Labor Relations Act is
34
to furnish a single tribunal to hear and determine
in the first instance labor disputes affecting inter
state commerce with adequate and exclusive oppor
tunity for judicial review in the designated court.”
That language is a cogent criticism of the order here
appealed from. The order after quoting (T. 52, line 23
to T. 53, line 5) the union shop provision of the Master
Agreement, says that it “ is void as applied to the plain
tiffs in this case, and others similarly situated” , and
upon the foundation of that declaration or finding pro
ceeds to the decretal orders 1, 2, 3, 4, 5 and 6. The union
shop provision is “ a cohesive p a rt” of the Master Agree
ment, and is part and parcel of the “ harmonious rela
tionship” in shipyard labor relations under the Master
Agreements. Those Agreements are nationwide and labor
relations under them ought not be left to disruptive action
in a multitude of local “ jurisdictions” . Every word said
by the New Jersey Court is applicable to the case at bar
and ought to lead to dissolution of the injunction and
dismissal of the complaint.
2. The National War Labor Board created by Execu
tive Order 9017, dated January 12, 1942, was given Con
gressional recognition by the enactment on June 25, 1943,
of the War Labor Disputes Act, § 7 (50 USC supp.
§ 1507). For the reasons stated thereunder in the Tampa
shipyard case, International Association of Machinists v.
State ex rel. Watson (Fla.), 15 So. 2d 485, a controversy
over a union shop provision in a shipyard Master Agree
ment is not justiciable in a State Court, and therefore
the injunctive order here should be reversed and the
Court below directed to decline jurisdiction over this war
labor dispute.
35
II.
THE COMPLAINT DOES NOT STATE FACTS SUFFICIENT TO
CONSTITUTE A CAUSE OF ACTION AND THEREFORE NO
INJUNCTION SHOULD HAVE BEEN GRANTED.
If there is no case there is no room for the play of
“ discretion” . That is self-evident, but Appellate Courts
have found it necessary now and then to repeat it as the
clear basis for vacating a causeless injunction.
“ Respondents rely upon the proposition that the
trial court did not abuse its discretion in granting
the injunction or in refusing to dissolve the tempo
rary injunction after it had been granted. But such
argument applies only where the pleading is sufficient
and the proof offered in support of the complaint
merely complies with the rule requiring substantial
support. A cause of action must exist before injunc
tive relief can be granted. Williams v. Southern Pa
cific R. Co., 150 Cal. 624, 89 P. 599; Shell Oil Co. v.
Richter, 52 Cal. App. 2d 164, 125 P. 2d 930.”
Watson v. Santa Cannelita Mutxial Water Co., 58
C. A. 2d 709, 719, 137 Pac. 2d 757, 762, col. 2.
“ Injunctive relief is a remedy and not, in itself, a
cause of action, and a cause of action must exist be
fore injunctive relief may be granted.”
Shell Oil Co. v. Richter, 52 C. A. 2d 164, 168, 125
Pac. 2d 930, 932, col. 2.
“ If the complaint, otherwise unsupported, is open
to attack on general demurrer, it is insufficient.”
Willis v. Lauridson, 161 Cal. 106, 108, 118 Pac. 530,
531, citing 22 Cyc. 941, now 32 C.J. 352, § 583.
The rule is often implicit in reversals, e.g., People v.
Western Fruit Growers, 22 C. 2d 494, 140 Pac. 2d 13,
American Fruit Growers v. Parker, 22 C. 2d 513, 140 Pac.
36
2d 23, i.e., where the application for the writ is based
upon a misconceived major premise of law.
Nor is the case changed through a pleader’s use of
epithets, emotion, rhetoric, opinions, conclusions, or argu
mentative allegations:
“ A complaint for an injunction which alleges only
general conclusions, not warranted by any pleading
of facts, does not state a cause of action to enjoin
the acts complained of. Davitt v. American Bakers’
Union, 124 Cal. 99, 56 P. 775; People v. Seccombe,
103 Cal. App. 306, 284 P. 725.”
E. H. Renzel Co. v. Warehousemen’s Union, 16 C.
2d 369, 373, 106 Pac. 2d 1, 3;
Willis v. Lauridson, supra;
Mechanics’ Foundry of San Francisco v. Ryall, 75
Cal. 601, 17 P. 703;
Martin v. Danziger, 21 Cal. App. 563, 132 Pac. 284.
The complaint at bar embodies a Negro ideology imple
mented with polar11 or glow1- words rounded-out with
n T. W. Arnold, Folklore of Capitalism, ch. VII, “ The Traps
which lie in Definitions and Polar Words” : “ Therefore, it be
comes necessary for anyone thinking objectively about human in
stitutions to realize the, traps which lie beneath words. This is a
familiar enougli idea. What is not so familiar, however, is the
kind of trap which lies behind peculiar types of words often called
‘polar’ words. These have no meaning by themselves” (pp. 166-7);
“ Our enthusiasms are aroused by these words and therefore they
are excellent tools with which to push people around” (p. 168);
“ These arguments never get anywhere in persuading the other
side. However, they perform a real function in bolstering up the
morale of the side on which they are used. The trick is to find a
pair of polar words, in which the nice word justifies your own
position and the had word is applied to the other fellow” (p.
169).
12Roucek, Ideology as a Means of Social Control (Am. Jour.
Economics and Sociology, January, 1944) 179, 191-192: “ An
adequate ideology expresses the ideal in terms of current ‘glow
37
erroneous opinions and conclusions of the draftsman.
Ihe facts set out in the complaint are few: paragraphs
I, II, III and I \ identify and describe the employer, the
union and the Negro employes. V, The class-plaintiffs
have been at work in the shipyard “ for periods ranging
in excess of one year for most of said workers” . VI sets
out the union shop provision of the Master Agreement.
VII states the industry (“ yards for the construction of
ships at Sausalito” ) and the contracts with the United
words’—-ideas that carry a strong and prevalent emotional tone,
as for example: ‘nationalism,’ ‘socialism,’ ‘racial superiority,’
‘liberty,’ ‘justice,’ ‘equality,’ ‘democratic methods,’ ‘dictatorship’’
and ‘ fatherland. ’ Since recent studies in ‘ semantics ’ deal more fully
with this problem, we need not continue here. But it is necessary
to note that an ideology, in order to function as the basis of a
successful movement, links up the goal with the issue by setting
forth a plan in which the items are the opposite of that which is
regarded as the cause of the problem-experience. This is done by
the use of the so-called ‘polar’ words. For example, in Germany
it was Dictatorship v. Parliamentarianism, Gleichschaltung v.
Liberalism; all ideologies fight ‘injustice’ in order to establish
‘justice’; they want to change the ‘bad’ for ‘good’ conditions.
The task of the ‘drummer’ and the staff of his popularizers is to
reduce the ideology to some attractive terms, words, and slogans,
to indulge in orgies of verbomania, and to substitute these words
and slogans for thinking. Once reactions are established by the
process of repetition, the hearing of the familiar sounds and
slogans or the sight of the characters and symbols (written and
spoken words, the flag) is then attended by passions and convic
tions of fearful intensity. The ideologist works diligently to have
his term awaken indefinable but precise emotions which make dis
cussion for the most part, very sterile since many of the most
popular subjects are infested with symbolically blank but emo
tionally active words. Listen to a speech by a communist and
notice the emotional reactions to such words as ‘imperialism,’
‘bourgeoise,’ ‘fascism.’ But exactly the same words will have
quite a different meaning and promote different emotional reac
tions when used on the ‘fascist.’ When ideologists talk about
‘.justice,’ ‘honesty,’ ‘duty’ and ‘loyalty,’ they always identify
these words of favorable effect with their own doctrine. The
same deeds perpetrated in the name of the same abstraction by
the opposing side become ‘treachery,’ ‘injustice,’ and ‘be
trayal.’ ”
38
States, and the non-discrimination clause therein. VIII,
workers are “ dispatched for employment by the Union,
which has jurisdiction and excludes Negroes from mem
bership in the white Local 6. IX, the class-plaintiffs were
thus dispatched “ to employment at Marinship without
requiring or permitting them to become members of said
Boilermakers or Local 6” but now demand that the Negro
plaintiffs become members of a segregated Local A-41,
and threaten to cause their discharge if they do not join
it. X sets out discriminatory inequalities between Locals
6 and A-41. XI states the desire and willingness of the
Negroes to join white Local 6. XII, the employer has
“ notified plaintiff and other Negro workers in its employ
that it would discharge them within 48 houi's” unless
they obtained “ re-clearances ” from the Union, that is,
“ unless they became and remained members in good stand
ing of said auxiliary A-41” . XIII, the Negroes “ have re
fused and will continue to refuse to join or pay any monies
or tribute to auxiliary A-41” for argumentative reasons
stated, “ but are ready, able [sic] and willing to join and
pay monies and dues upon the same terms and conditions
as non-Negro workers to Local 6” ; and unless enjoined
the Union will “ compel and induce” the employer to
discharge them. XIV, not being members they have not
sought redress within the Union. Within “ the past few
weeks and days” , various Federal agencies have been
active in and about the matter. XV contains a most gen
eral allegation of irreparable injury if an injunction is
not granted.
From the sileiice of the complaint the Court may pre
sume (and the affidavit-showing reinforces the presump
39
tion) that the Negroes have been working in the shipyard
on a parity with whites, holding identical jobs at identical
rates of pay and under identical working conditions, all
without any discrimination whatever either in hiring or
in working. And the Court may likewise presume (and
the affidavit-showing reinforces the presumption) that the
union initiation fees and dues are no higher for Negroes
than for whites.
It is clear that the complaint does not state a cause of
action and that therefore there is no basis for the grant
of an injunction.
(a) There is no jurisdiction to command admission to member
ship in a union.
The dominant prayer of the complaint is (T. 14, lines
16-22):
“ 4 For a mandatory * * injunction compelling”
the Union defendants “ to admit” the Negroes “ into
full membership in said Boilermakers and Local 6” ,
and the Court below issued the command13 in the indi
rect14 form (T. 54, line 22 to T. 55, line 3):
“ 4. That the Llnion and its officers are enjoined
and restrained from ‘refusing to admit into member
ship in said Local 6’ on equal terms with whites
‘plaintiff and other Negro workers similarly situ
ated.’ ”
1 s‘' In states where the distinction between law and equity has
been abolished, a mandatory injunction and a writ of mandamus
can not be distinguished”, High, Injunctions, (4th ed. 1905) §2.
14“ It is to be observed, however, that courts of equity rarely
interfere to command the doing of a positive act, but the same
result is obtained by framing the injunction in an indirect form
and prohibiting the defendant from doing the reverse of what he
is desired to do, ’ ’ High, supra, § 2.
40
The command went beyond the power of the Court below.
A labor union, as here, is a voluntary association. We
quote from a leading case:
“ And if they would and will not associate with
them, upon what reasoning or principle should they
be compelled to, and the aid of a court of justice
invoked? The right to be a member is not conferred
by any statute, nor is it derivable, as in the case of
an incorporated body. It is by reason of the action,
and of the assent of the members of the voluntary
association, that one becomes associated with them
in the common undertaking, and not by any outside
agency, or by the individual’s action. Membership
is a privilege which may be accorded or withheld,
and not a right which can be gained independently,
and then enforced.”
McKane v. Democratic General Committee of
Kings County, 25 N.E. 1057, col. 2, 123 N.Y. 609,
20 Am. St. Rep. 785;
3 Cal. Jur. 350, § 5;
5 C. J. 1353, § 64;
7 C.J.S. 56, § 23;
Moses D. Chapman, et al. v. American Legion,
et al. (Ala., 1943), 14 So. 2d 225, 147 A.L.R. 585
(“ refusal of an additional Post Charter in Birm
ingham” , Alabama).
For refusal of membership in the London stock exchange,
on racial ground, see: Cassell v. Inglis, (1916) 2 Ch. 211;
Weinberger v. Inglis, (1919) A.C. 606, affirming (1918)
1 Ch. 517.
The basis of association is contract; entry into “ mem
bership” is the entering into a contract, 3 Cal. Jur. 349,
41
§ 4; Laivson v. Hewell, 118 Cal. 613, 49 L.R.A. 400, 50
I’ac. 763; Dingwall v. Amalgamated Association of Street
Railway Employes of America, 4 Cal. App. 565, 569, 88
Pac. 597, 599, col. 1. The leading case upon admission
to membership in a labor union is Mayer v. Journey
men Stonecutters’ Association, 47 N.J. Eq. 519, 20 Atl.
492. There two journeymen stonecutters, Hahn and Zim
merman, joined as complainants with an association of
employers in a bill against a labor union for injunctive
relief15 which, as to Hahn and Zimmerman, should require
the union to admit them to membership. Holding that the
“ court has no jurisdiction to grant the relief prayed fo r”
(20 Atl. at 496, col 2, bottom) it was said (20 Atl. at 494,
col. 1):
“ It appears that the complainants Hahn and Zim
merman did make some effort to obtain admission
into the defendant association, but it is quite clear
that they did not make application for membership
regularly, as required by the by-laws, and that the
question was never considered or passed upon by
that body. But, if it were otherwise, has this court
1520 Atl. at 492, col. 2: “ The relief prayed for in the bill is
that this court shall require the defendant association to admit
Hahn and Zimmerman, and all other journeymen stone-cutters
residing in Newark and vicinity, to be members of the association,
on paying the customary dues, and fulfilling the rules imposed
upon other members, and to give to each the customary card, or
other usual evidence of such membership; and (2) that the
association, its officers and agents and stewards, be enjoined from
denouncing Hahn and Zimmerman as ‘scabs,’ or in any manner
persecuting or injuring them on account of their exercising their
lawful trade without being admitted to such membership, and
from attempting to coerce or intimidate the complainants, who
are master stone-cutters, or any other master stone-cutters, from
employing Hahn and Zimmerman, or other skillful journeymen,
whether members of said association or not, by means of strikes,
boycotts, or other methods of violence or intimidation.”
42
power to require the admission of a person to mem
bership in a voluntary association, when it has been
denied by the society? These organizations are
formed for purposes mutually agreed upon; their
right to make by-laws and rules for the admission
of members and the transaction of business is un
questionable. They may require such qualifications
for membership, and such formalities of election, as
they choose. They may restrict membership to the
original promoters, or limit the number to be there
after admitted. The very idea of such organizations
is association mutually acceptable, or in accordance
with regulations agreed upon. A power to require
the admission of a person in any way objectionable
to the society is repugnant to the scheme of its or
ganization. While courts have interfered to inquire
into and restrain the action of such societies in the
attempted exclusion of persons who have been regu
larly admitted to membership, no case can, I think,
be found where the power of any court has been
exercised, as sought in this case, to require the ad
mission of any person to original membership in any
such voluntary association. Courts exist to protect
rights, and where the right has once attached they
will interfere to prevent its violation; but no person
has any abstract right to be admitted to such mem
bership. That depends solely upon the action of the
society, exercised in accordance with its regulations,
and, until so admitted, no right exists which the
courts can be called upon to protect or enforce.”
Accord:
Oakes, Organized Labor and Industrial Conflicts,
45, § 42;
Greenwood v. Building Trades Council, 71 Cal.
App. 159, 171-174, 233 Pac. 823, 828-829;
43
Maguire v. Buckley, 301 Mass. 355, 17 N.E. 2d 170;
Acierno v. North Shore Bus Co., 17 N.Y.S. 2d 170,
171.
Nor does the situation differ if the union holds a closed
shop agreement, notwithstanding an allegation, as in
Miller v. BuehJ), 2 N.Y.S. 2d 394, that a plaintiff will be
“ deprived of employment on the ground that he is not a
member” of the union (2 N.Y.S. 2d at 395). The Court
said:
“ The public press and the law reports provide
much discussion of the question of union membership
and employment of those affiliated with unions. There
are many cases in the law reports where the courts
have ordered the reinstatement to membership in
unions of those who have been improperly removed
from membership. Recent statutes enacted by legis
lative bodies, endeavoring to provide for labor an
implement that would permit labor to wage on equal
terms a fight for the enforcement of the rights of
labor as against those of capital, have been enacted
so as to make provision allowing employees of spe
cific industries to choose labor unions as their repre
sentatives in bargaining with employers. This legis
lation has led to efforts of large aggregations of
labor unions to secure control of employment in cer
tain industries, and there have been tremendous cam
paigns conducted for the inclusion of persons in one
set of unions or another. So to the ordinary man it
may appear somewhat odd that a person who appar
ently is qualified under the rules of the union to
become a member is rejected by the union solely on
the ground that the union does not care to have him
as a member. No provision of statute has been en
acted to require a union to take into its membership
any person who petitions for membership if such
44
union does not desire that person as a member. But
the petitioner contends that the legislation recently
enacted must necessarily carry with it as a corollary
rule of law the right of a laboring man to be ad
mitted to membership in a union of his choosing.
Before these recent efforts to unionize industry
had governmental sanction in the manner in which
such sanction is expressed today, there had been ef
forts made on the part of individuals to force them
selves into membership of unions and the courts have
held in such cases that a union could not be com
pelled to accept an applicant for membership unless
the union so desired. The basis of such holding has
been that, if the union which was a voluntary asso
ciation organized for the good of those taken into
membership and for those in industry who would be
eligible to membership could be compelled to accept
members, the persons whose interests were inimical
to the union and its purposes could force themselves
into membership in the union and from within de
stroy the union and thus sultify the purposes for
which the union was organized. Simons v. Berry, 210
App. Div. 90, 205 N.Y.S. 442; Id., 240 N.Y. 463, 148
N.E. 636; Greenwood v. Building Trades Council of
Sacramento et al., 71 Cal. App. 159, 233 P. 823; H ar
ris v. Thomas, Tex. Civ. App., 217 S.1V. 1068; Mayer
et al. v. Journeymen Stonecutters’ Ass’n et al., 47
N.J. Eq. 519, 20 A. 492.
As the Legislature has not enacted a specific statute
compelling unions to accept members, this court is
of the opinion that a labor union which is a voluntary
association still has the right to reject applicants
for membership at will. In view of this holding, one
might ask what is to become of the applicant if he
is true in his statement of fact that he will be unable
to obtain employment at his chosen vocation because
45
lie is not a member of the union. This is a question
involving public policy and must be answered by the
Legislature. In enacting legislation to strengthen the
cause of labor through unions, the Legislature has not
made provision to compel unions to accept members.
Its failure to do so must be accepted as the present
expression of public policy and therefore an indorse
ment of the view expressed in the cases above cited
that an applicant for membership cannot force his
way into the union against the negative vote of the
union.
This court being of the opinion that the question
of law herein should be resolved in favor of the re
spondent, the petition is dismissed.”
Nor does it differ if the plaintiff is or has been working
as a “ permit man” , which is the substance of the allega
tion of the present plaintiffs that they worked for about
one year10 (Complaint, V, T. 3) before the organization
1UA report of a current survey by a Negro educator, Dr. Charles
S. Johnson of Fisk University, discloses “ There are 18,000
Negroes in San Francisco now. In 1940, the Negro population
here was 4,846. The gain during the past four years has been
271 per cent. The heaviest migration here has been from Texas,
Louisiana and Oklahoma,” San Francisco Examiner, April 8,
1944, page 7. The population of 4,846 under the 1940 census in
cluded 4286 of the age of 14 years and older, which 4286 is
broken down in the census as follows: employed (except on emer
gency work), 1843; on emergency work, 476; seeking work 427;
not in labor force, 1540. The 1940 census distributed the 1843
employed as follows: professional workers, 29; semi-professional
workers, 23; farmers and farm managers, none; proprietors, man
agers and officials, except farm, 44; clerical, sales and kindred
workers, 91; craftsmen, foremen and kindred workers; 56; op
eratives and kindred workers, 130; domestic service workers, 490;
service workers, except domestic, 779; farm laborers (wage
workers), none; farm laborers (unpaid family workers), none,
laborers, except farm, 179; occupation not reported, 22. The
1940 census shows a total Negro population of 514 in Marin
County. Presumably, most or a great many of the 1500 Negroes
46
of auxiliary Local A-41, coupled with the allegation (id.,
IX, T. 5-6) that they were “ dispatched” “ to employment
at Marinship” by the union. Working for a period as a
“ permit man” does not generate a “ right” to a man
damus to compel admission to membership. In Murphy
v. Higgins, 12 N.Y.S. 2d 913, affirmed 23 N.Y.S. 2d 552,
the Court said:
“ Stripped of its conclusory allegations, the gist
of the complaint is that the defendants are engaged
in an unlawful conspiracy to deprive the plaintiffs
of a right and opportunity to engage in their calling
as brewery- truck drivers. The chief overt act alleged
is that some of the defendants caused the improper
admission of fifty-nine additional members in the
union. As a consequence, these plaintiffs (who are
not members of any union) were deprived of their
privilege to Avork for breweries as permit men under
the provisions of a ‘closed shop’ agreement with the
employers. Prior to the advent of these new mem
bers, during the busy seasons when there were in
sufficient union men to fulfill the needs of the bmv-
eries, it had been the customary practice for the de
fendant Local 59 to issue permit cards to non-union
men, thus allowing them to accept employment. The
increase in membership obviated the necessity for
the continuance of this practice.
While the cases cited by the plaintiffs are aca
demically correct, they are not applicable to the
situation here presented. The fundamental legal
right of the plaintiffs to freely engage in their lawful
calling is necessarily limited in scope by the decisions
(T. 46, line 8) working at Marinship are immigrants since 1940
from Texas, Louisiana and Oklahoma. Obviously, a period of time
in work as “ permit men” Avould precede the organization of an
auxiliary local.
47
recognizing the right of labor organizations to union
ize for a lawful end and where the means employed
are lawful. The validity of ‘closed shop’ agreements
is now well established. Labor unions are permitted
to combine and strike in a particular industry for
the purpose of obtaining employment of union mem
bers to the exclusion of non-union men. Williams v.
Quill, 277 N.Y. 1, 12 N.E. 2d 547. This principle has
been made part of our statutory law, Section 340,
General Business Law. It must follow that the court
will not decree that the union shall permit non-union
men to be employed where there is an existing ‘closed
shop’ contract with the employers. Nor will the court
compel a union to accept any one for membership
irrespective of the cause for refusal. Miller v. Ruehl,
166 Misc. 479, 2 N.Y.S. 2d 394.
In the final analysis the complaint merely charges
the defendants with having conspired to do lawful
acts in a lawful manner. The allegations of malice
in connection with these acts, alone, does not create
a cause of action. Cooke v. Dodge, 164 Misc. 78, 299
N.Y.S. 257. The plaintiffs obviously have been hurt
by these acts, but they are not established to have
been unlawful. The court is not concerned in this
action with the reason for the increase in member
ship, or the propriety of the action thus taken. Ordi
narily, the court will not interfere in the internal
affairs of a union, even on complaint of a member
(Fish v. Huddell, 60 App. D.C. 263, 51 F. 2d 319);
it certainly will not assume jurisdiction to act on
the behest of a stranger who incidentally may be
damaged by such action.”
The union shop, or “ closed shop” , has been ruled lawful
in California in intrastate commerce industries, Parkinson
v. Building Trades Council, 154 Cal. 581, 98 Pac. 1027,
48
21 L.R.A. N.S. 550, 16 Ann. Cas. 1165, McKay v. Retail
Auto Salesmen’s Local Union, 16 C. 2d 311, 106 Pac. 2d
373, certiorari denied 313 U.S. 566, 85 L. Ed. 1525, and
is equally lawful in industries affecting interstate com
merce, National Labor Relations Act, % 8(3), proviso
(29 USC § 158), Hamer v. Nashawcna Mills (Mass., 1943),
52 N.E. 2d 22; N.L.R.B. v. Lion Shoe Co., 97 Fed. 2d 448;
F. F. East Co. v. United Oystermen’s Union, 130 N.J.
Eq. 292, 21 Atl. 2d 799 (Negro union shop); International
Association of Machinists v. State, 15 So. 2d 485 (Tampa
shipyard). There is currently some discussion about
“ closed shop plus closed union plus work monopoly’’17
17In the Tampa shipyard ease, International Association of
Machinists v. State, (Fla., 1943), 15 So. 2d 485, the Court said
(page 489, col. 2) :
“ It is next contended that the challenged clause of the
contract is abhorrent because it effectuates a monopoly of
labor in restraint of the free right to work. Perhaps that
is the indirect effect of such contract, in limited degree. But
assuming that to be true and that such was its purpose, it
does not follow that such contract is illegal or violative of
public policy. Such monopoly is not illegal per se, nor is it
contrary to any applicable statute. Public policy is not
thereby violated because Congress, by at least three statu
tory enactments, as affirmed the right of laborers to combine
and act in the interest of the group. By the Norris-
LaGuardia Act, 29 U.S.C.A. §§ 101-105, Congress prohibited
the use of injunction to interfere with the orderly combina
tion and action of labor unions; by the Anti-Trust Act of
1914, 15 U.S.C.A. § 17, Congress deliberately exempted labor
unions from application of its provisions; and by the Na
tional Labor Relations Act, 29 U.S.C.A. § 151, it definitely
established the right of labor organizations to combine and
bargain collectively for the performance of labor. This estab
lished the legality in this regard of contracts such as we are
now considering here.
With the wisdom of these statutes, or with the wisdom
of the public policy which they establish, we cannot be
concerned. The cold fact is that Congress has ordained that,
except where applicable statute prohibits, labor unions may
indulge in practices which may produce monopolistic results,
49
but such an important issue does not arise upon the rec
ord at bar and ought not to be touched by the Court
until a case that raises it comes before the Court, (cf.
United Shoe Workers v. Wisconsin Labor Relations
Board, 279 N.W. 37, 42, col. 1.) This union is not closed:
it has been and it still is open to the Negro plaintiffs,
and they have been working and still are at work and
can continue at work on a parity with whites as to wages,
hours and working conditions, but they simply assume
as a militant minority18 to dictate their own terms and
recast the internal organization of the union, without re
gard to the effect upon the ninety percent of white
workers in this national union (the membership of which
is drawn from all regions of the United States) if the
Negroes obtain a command that they be admitted to mixed
membership in white locals.
and also may combine and through one and the same repre
sentative, bargain and contract together and collectively for
the performance and execution of all the labor required by
any employer to be performed and in regard to which such
employer is willing to enter into such contract.”
Labor unions are not within the Federal anti-monopoly statute
(Sherman Act), United States v. Hutcheson, 312 U.S. 219, 85 L.
Ed. 788.
1 ritoucek, supra (note 12), pp. 181-182: “ Many persons do not
derive a feeling of self-regard and self-respect from the accepted
standards of the majority. They prefer to identify themselves
with goals not yet achieved, with ways of life not yet approved
by the majority. Others are rebels against the culture which
surrounds them, and join ideological movements which frown or
laugh at the common criteria of status. Still other people join a
minority movement ‘just on general principle,’ as individuals
who choose to follow what they think is a creative, dynamic and
rebellious movement since they are quite indifferent to the norms
of a culture or the standards of the majority.”
50
(b) The remaining decretal paragraphs of the temporary in
junction are also contrary to law.
The remaining paragraphs of the temporary injunction
restrain defendants from: 1. “ Compelling” the Negroes
“ to join” auxiliary A-41; 2. causing the employer (a)
to discharge Negro workers, and (b) to refuse to hire19
Negroes; objecting to employment of non-union Negroes;
5. refusing to give “ job or work clearances” to Negroes;
6. enforcing the by-laws of auxiliary A-41.
The matter of refusal to hire is outside the issues, be
cause the plaintiff Joseph James as an individual, and
the 1,000 class plaintiffs “ similarly situated” , are all
employes. (Complaint, IV, T. 2, lines 17-26.) A judg
ment may even be attacked collaterally where the Court
had jurisdiction of the parties and subject matter of the
action but did not have jurisdiction of the question which
the judgment assumes to determine, Baar v. Smith, 201
Cal. 87, 102, 255 Pac. 827, 833, col. 1 (and other authori
ties throughout the opinion): a fortiori upon this direct
attack the judgment should be vacated. We know of no
chancery precedent or doctrine of compulsion of hiring,
and if judicial creation is to be contemplated it should
await a record that clearly raises the question. Currently,
it is a statutory matter under the Wagner act, and the
same statute creates a tribunal and gives an exclusive
jurisdiction to it.
19A discriminatory refusal to hire is within the exclusive juris
diction of the National Labor Relations Board under the Wagner
act, Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 85
L. Ed. 1271, 133 A.L.R. 1217, and extends to persons acting in
concert or cooperation with the employer, N.L.R.B. v. Grower-
Shipper Vegetable Association of Central California, 9 Cir., 122
Fed. 2d 368, 378, col. 1.
51
The remaining paragraphs reflect the rejection by the
Court below of the idea that there may be, by private
persons as distinguished from public bodies, discrimina
tory segregation between whites and Negroes. Through
a long course of judicial history since Emancipation, it
is clear that whites and Negroes are on a footing of
complete equality before the law, and that that complete
equality includes the equal right of each to discriminate
against the other, as individuals, in their personal, social
and business or economic relations. The law distinguishes
between private action by individuals and public action
in or under statutes or ordinances. Segregation per se
is not discrimination, and therefore a statute may validly
require separate public schools for whites and Negroes,
Ward v. Flood,20 48 Cal. 36, 17 Am. Rep. 405, where at
page 52, the Court said:
“ In short, the policy of separation of the races
for educational purposes is adopted by the legislative
department, and it is in this mere policy that the
counsel for the petitioner professes to discern ‘an
odious distinction of caste founded on a deep-rooted
prejudice in public opinion.’ But it is hardly neces
sary to remind counsel that we cannot deal here with
such matters, and that our duties lie wholly within
the much narrower range of determining whether
this statute, in whatever motive it originated, denies
to the petitioner, in a constitutional sense, the equal
protection of the laws; and in the circumstances that
the races are separated in the public schools, there
is certainly to be found no violation of the constitu
tional rights of the one race more than of the other,
and we see none of either, for each, though separated
from the other, is to be educated upon equal terms
20Followed in Gong Lum v. Rice, 275 U.S. 78, 86, 72 L. Ed.
172, 177, col. 1.
52
with that other, and both at the common public ex
pense. A question similar to this came before the
Supreme Judicial Court of the State of Massachu
setts in 1849 (Roberts v. The City of Boston, 5 Cush
ing R. 198), and was determined by the Court in
accordance with the views just expressed by us. * * *
The opinion of the Court, delivered by Mr. Chief
Justice Shaw, maintained the rightful authority of
the school committee, to separate the colored children
from the white children in the public schools of the
city of Boston, and in the course of the opinion, the
learned Chief Justice remarked as follows: * * *
‘It is urged that this maintenance of separate schools
tends to deepen and perpetuate the odious distinction
of caste, founded on a deep-rooted prejudice in public
opinion. This prejudice, if it exists, is not created
by law, and probably cannot be changed by law.
Whether this distinction and prejudice, existing in
the opinion and feelings of the community, would
not be as effectually fostered by compelling colored
and white children to associate together in the same
schools, may well be doubted; at all events, it is a
fair and proper question for the committee to con
sider and decide upon, having in view the best in
terests of both classes of children placed under their
superintendence; and we cannot say that their deci
sion upon it is not founded on just grounds of reason
and experience, and in the results of a discriminating
and honest judgment.’ ”
Similarly, as to separate accommodation in railroad
coaches, Plessy (octaroon) v. Ferguson, 163 U.S. 537, 41
L. Ed. 256 (leading21 case) affirming Ex parte Plessy, 45
-'Shepard’s United States Citations shows that Plessy v. Fergu
son leads a multitude of eases in all jurisdictions covering a multi
tude of relationships. It would extend this brief to great length
to review them, and it is considered unnecessary.
53
La. Ann. 80, 11 So. 948, 18 L.R.A. 639 (annotated), where
the Court said (163 U.S. at 551):
“ We consider the underlying fallacy of the plain
tiff’s argument to consist in the assumption that the
enforced separation of the two races stamps the col
ored race with a badge of inferiority. If this be so,
it is not by reason of anything found in the act, but
solely because the colored race chooses to put that
construction upon it. The argument necessarily as
sumes that if, as has been more than once the case,
and is not unlikely to be so again, the colored race
should become the dominant power in the state legis
lature, and should enact a law in precisely similar
terms, it would thereby relegate the white race to
an inferior position. We imagine that the white race,
at least, would not acquiesce in this assumption. The
argument also assumes that social prejudices may
be overcome by legislation, and that equal rights
cannot be secured to the negro except by an enforced
commingling of the two races. We cannot accept this
proposition. If the two races are to meet on terms
of social equality, it must be the result of natural
affinities, a mutual appreciation of each other’s
merits and a voluntary consent of individuals. As
was said by the court of appeals of New York in
People v. Gallagher, 93 NAT. 438, 448 [45 Am. Rep.
232], ‘this end can neither be accomplished nor pro
moted by laws which conflict with the general senti
ment of the community upon whom they are designed
to operate. When the government, therefore, has
secured to each of its citizens equal rights before
the law and equal opportunities for improvement
and progress, it has accomplished the end for which
it is organized and performed all of the functions
respecting social advantages with which it is en
dowed.’ Legislation is powerless to eradicate racial
54
instincts or to abolish distinctions based upon physi
cal differences, and the attempt to do so can only
result in accentuating the difficulties of the present
situation. If the civil and political I’ights of both
races be equal one cannot be inferior to the other
civilly or politically. If one race be inferior to the
other socially, the Constitution of the United States
cannot put them upon the same plane.”
When segregation occurs by public action, the separate
treatment must be equal, Missouri ex rel. Gaines v. Can
ada, 305 U.S. 337, 83 L. Ed. 208, though not identical,
Piper v. Big Pine School Dist., 193 Cal. 664, 671, 226
Pac. 926, 929, col. 2; and see the case of the negro girl
resident student in the Home Economics’ house of Ohio
State University, who demanded a white girl as a room
mate because each of the white girl students had one,
State ex rel. Weaver v. Board of Trustees of Ohio State
University, 126 Ohio St. 290, 185 N.E. 196. And see the
case of the militant Negro pastor who demanded that he
be seated at the captain’s table on a steamer, McGuinn
v. Forbes, 37 Fed. 639.
When we turn from public action to private action, the
settled difference is well illustrated in the residential
district cases. Negroes may not be excluded by ordinance
from a particular residential area, Buchanan v. Warley,
245 U.S. 60, 62 L. Ed. 149, L.R.A. 1918C 210, Ann. Cas.
1918A 1201, but they may be excluded by private action
through restriction in a deed, Los Angeles Investment
Co. v. Gary, 182 Cal. 680, 186 Pac. 596, 9 A.L.R. 115;
Janss Investment Co. v. Walden, 196 Cal. 735, 239 Pac.
34; Wyat v. Patee, 205 Cal 46, 269 Pac. 660; Corrigan
55
v. Buckley, 271 U.S. 323, 70 L. Ed. 969. In the latter
case it was said (271 U.S. at 330):
“ Under the pleadings in the present case the only
constitutional question involved was that arising
under the assertions in the motions to dismiss that
the indenture or covenant which is the basis of the
bill, is ‘void’ in that it is contrary to and forbidden
by the 5th, 13th, and 14th Amendments. This con
tention is entirely lacking in substance or color of
merit. The 5th Amendment ‘is a limitation only upon
the powers of the general government,’ Talton v.
Mayes, 163 U.S. 376, 382, 41 L. ed. 196, 198, and is
not directed against the action of individuals. The
13th Amendment denouncing slavery and involuntary
servitude, that is, a condition of enforced compulsory
service of one to another, does not in other matters
protect the individual rights of persons of the negro
race. Hodges v. United States, 203 U.S. 1, 16, 18,
51 L. ed. 65, 68, 69. And the prohibitions of the 14th
Amendment ‘have reference to state action exclu
sively, and not to any action of private individuals.’
Virginia v. Rives, 100 U.S. 313, 318, 25 L. ed. 667,
669; United States v. Harris, 106 U.S. 629, 639, 27
L. ed. 290, 294. ‘It is state action of a particular
character that is prohibited. Individual invasion of
individual rights is not the subject-matter of the
Amendment.’ Civil Rights Cases, 109 U.S. 3, 11, 27
L. ed. 836, 839.”
And it was decided in National Federation of Railway
Workers v. National Mediation Board, 110 F. 2d 529, cer
tiorari denied 310 U.S. 628, 84 L. Ed. 1399, that the
placing of Negro workers in separate lodges does not
violate the Fifth Amendment. Through Associate Justice
Vinson the Court (including Justice Rutledge, now an
56
Associate Justice of the Supreme Court) said, 110 F. 2d
537:
“ The fourth contention of the Federation is that
certain rules of the Brotherhood so proscribe the
role colored men may play in that organization that
representation by it of the coach cleaners will de
prive members of the Federation of the equal pro
tection of the laws and of property without due
process of law in violation of the 14th amendment,
U.S.C.A. Const.
The constitution of the Brotherhood provides, in
Section 6(c) as follows: ‘On railroads where the
employment of colored persons has become a perma
nent institution, they shall be admitted to member
ship, in separate lodges. Where these separate lodges
of negroes are organized they shall be under the
jurisdiction of and represented by the delegates of
the nearest white local in any meeting of the Joint
Protective Board, Federation, or convention where
delegates may be seated’. Its constitution thus seems
to indicate that colored participation in the Brother
hood is limited to membership in these separate
lodges, and the Federation contends that Brotherhood
representation means that the officers bargaining with
the carrier in behalf of the coach cleaners will not
be colored.
Would such a limitation by the Brotherhood on
the rights of its colored members operate here to
deprive members of the Federation of any constitu
tional rights?
The guarantees of the 14th amendment relate
solely to action by a state government, clearly absent
here. Hence, any constitutional rights pertinent to
the instant case are those guaranteed by the 5th
amendment. Decisive of this constitutional issue is
the established proposition that the 5th amendment
57
relates only to governmental action, federal in char
acter, not to action by private persons. Corrigan v.
Buckley, 271 U.S. 323, 330, 70 L. Ed. 969. Thus the
Brotherhood, a private association, acting on its own
initiative and expressing its own will, may limit the
rights of its colored members, without thereby offend
ing the guarantees of the Constitution. Cf. Grovey
v. Townsend, 295 U.S. 45, 79 L. Ed. 1292, 97 A.L.R.
680.”
“ Individual invasion of individual rights” can be pro
hibited only by law, i.e., by a statute of the state. The
“ Civil Rights” statute, Calif. Civil Code, §§ 51-54, relates
to specifically enumerated subjects, such as inns, res
taurants, theaters, public conveyances, and the like; it
does not extend, if it could, to membership in labor unions.
Such statutes are not, through construction, extended by
implication or analogy, 14 C.J.S. 1163, col. 2. See, e.g.,
Goff v. Savage, 122 Wash. 194, 210 Pac. 374; Burks v.
Bosso, 180 N.Y. 341, 73 N.E. 58; Faulkner v. Sollazi, 79
Conn. 541, 65 Atl. 947; Harvey, Inc. v. Sissle, 53 Ohio
App. 405, 5 N.E. 2d 410, and authorities there cited. In
the absence of a statute, any remedy must he found in
breach of some contract, Taylor v. Cohn, 47 Or. 538, 84
Pac. 338, 8 Ann. Cas. 527, De La Ysla v. Publi.r Theaters,
(Utah) 26 Pac. 2d 818.
Plaintiff’s complaint argues that the By-Laws govern
ing Auxiliary Lodges “ are void and illegal as being con
trary to public policy because they are unequal and dis
criminate against Negroes” . (Complaint, X, T. 8, lines
23-26.) We quote from a recent decision affirming a judg
ment sustaining racial restrictions in deeds, Burkhardt
v. Lofton, 63 A.C.A. 356, 365, 146 Pac. 2d 720, 724:
58
“ Defendants further argue that racial restrictions
are against ‘the present public policy of the nation and
of this state.’ They quote section 51 of the Civil Code
as supporting this argument. This section guarantees
to all citizens equal accommodations of inns and cer
tain other public establishments, subject to conditions
applicable alike to all citizens. This, of course, estab
lishes the policy of the state as far as it goes but no
further than that. Limitations upon the use of real
property such as the one under consideration have
never been declared to be against public policy by leg
islative authority, so far as we are advised, and they
have been uniformly upheld by the courts. Racial re
strictions have been employed in the development of
countless residential communities and have very gen
erally been considered essential to the maintenance
and stability of property values. Non-Caucasians are
and always have been just as free to restrict the use
and occupancy of their property to members of their
own races as Caucasians have been. The fact that the
members of the Caucasian race have freely availed
themselves of this right throughout the nation, even
though those ,of the non-Caucasian races have not, is
the most satisfactory proof of the public policy of the
nation with respect to this phase of the right to con
tract. No doubt public policy changes and develops
with the times, but these changes must have their
sources in the citizenry and not in the decisions of
courts or the pronouncements of publicists and poli
ticians. The right to contract with reference to their
own property is one that is preserved to all citizens
and, except where restricted by law, is a right which
the peoples of all races may exercise freely. I t cannot
be denied by the courts to those who make use of it in
certain situations because others similarly situated
may choose not to avail themselves of it. The responsi
bility of striking down the validity of racial restric
59
tions with respect to the use and occupancy of real
property is one which no court or judge should assume
on the strength of individual theories as to what con
stitutes the ‘present’ public policy on the subject or of
personal belief that the consequences would be for the
general good. The desirability of a more understand
ing and harmonious relationship among the many
races of our nation is something no one will deny, but
it will come only with time and experience and it is a
matter in which public thought and conscience cannot
be directed or controlled by the courts through the up
rooting of firmly established precedent.”
Plaintiff’s complaint also argues that there is “ taxation
without representation” . (Complaint, XI, T. 9, line 21.)
That argument requires subjection to semantic discipline
to determine the referent of the pleader’s word “ repre
sentation” . The record at bar does not deal with stamps
on Colonial documents nor with a new fiscal policy in the
ministry of a Lord North laying duties on goods imported,
beginning with tea.-- The referent of the pleader’s word 2
2-“ As for the suggestion sometimes made that there was some
thing unprecediently outrageous about an English Parliament tax
ing people who were unrepresented there, it is, in view of the
constitution of that parliament, somewhat comic. If the Parlia
ment of 1764 could only tax those whom it represented, its field
of taxation would be somewhat narrow. Indeed, the talk about
taxation without representation being tyranny, however honestly
it might be uttered by an American, could only be conscious or
unconscious hypocrisy in men like Burke, who were not only
passing their lives in governing and taxing people who were
unrepresented, but who were quite impenitently determined to
resist any attempt to get them represented even in the most im
perfect fashion”, Chesterton, A History of the United States
(Everyman’s Library No. 965), p. 17. The editor adds: “ The
colonists had a much better legal case than is here suggested.
They did not deny that they were subject to legitimate royal
authority; they denied that they were subject to parliamentary
authority. For the best case that can be made for this view see
C. H. Mcllwain, The American Revolution: A Constitutional In
terpretation.”
60
“ representation” is found in the National Labor Relations
Act, § 9(a), 29 USC § 159(a), which reads:
“ Representatives designated or selected for the pur
poses of collective bargaining by the majority of the
employees in a unit appropriate for such purposes,
shall be the exclusive23 representatives of all the em
ployees in such a unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Pro
vided, That any individual employee or a group of
employees shall have the right at any time to present
grievances to their employer.”
Collective bargaining is the means used, a collective con
tract the end sought.
“ Collective bargaining was not defined by the stat
ute which provided for it, but it generally has been
considered to absorb and give statutory approval to
the philosophy of bargaining as worked out in the
labor movement in the United States.”
Order of Railroad Telegraphers v. Railway Express
Agency, 88 L. Ed. *495, at 497, col. 2 (February
28, 1944).
-3The first Federal statutory expression of majority rule is
found a year before the Wagner Act of 1935 in the 1934 amend
ments of the Railway Labor Act of 1926. The 1934 Act, § 2,
Fourth, 45 USC § 152, Fourth, reads: “ Employees shall have
the right to organize and bargain collectively through representa
tives of their own choosing. The majority of any craft or class
of employees shall have the right to determine who shall be the
representative of the craft or class for the purposes of this act” .
The word “ exclusive” is not used, but the majority representa
tion is necessarily exclusive, Order of Railroad Telegraphers v.
Railway Express Agency, 88 L. Ed. *495 (February 28, 1944).
The famous § 7(a) of the National Industrial Recovery Act
(1933), and the labor boards created thereunder, precipitated a
raging controversy pro and con about majority rule in labor
relations, the history of which is related in Lorwin and Wubnig,
Labor Relations Boards (Brookings Institution, 1935), pp. 109-
112, 268-271.
61
The acts of Congress have outworn the theory24 that the
individual worker has a right “ to bargain in majestic and
poverty-stricken aloofness for the wages for his services” .
(Newman, The Closed Union and the Right to Work, 43
Columbia Law Review 42, 43.) Collective bargaining by
the representative designated by the majority of “ the em
ployees in a unit appropriate for such purposes” excludes
the possibility of individual bargaining, J. I. Case Co. v.
N.L.R.B., 88 L. Ed. *489 (February 28, 1944), affirming 134
Fed. 2d 70, wherein the Supreme Court said inter alia:
“ Contract in labor law is a term the implications of
which must be determined from the connection in
which it appears. Collective bargaining between em
ployer and the representatives of a unit, usually a
union, results in an accord as to terms which will
govern hiring and work and pay in that unit. The
result is not, however, a contract of employment ex
cept in rare cases; no one has a job by reason of it
and no obligation to any individual ordinarily comes
into existence from it alone. The negotiations between
union and management result in what often has been
called a trade agreement, rather than in a contract of
employment. Without pushing the analogy too far,
the agreement may be likened to the tariffs established
by a carrier, to standard provisions prescribed by
supervising authorities for insurance policies, or to
utility schedules of rates and rules for service, which
do not of themselves establish any relationships but
which do govern the terms of the shipper or insurer
or customer relationship whenever and with whom
ever it may be established. Indeed, in some European
2iAdair v. United States, 208 U.S. 161, 52 L. Ed. 436, Coppage
v. Kansas, 236 U.S. 1, 59 L. Ed. 441.
62
countries, contrary to American practice, the terms of
a collectively negotiated trade agreement are sub
mitted to a government department and if approved
become a governmental regulation ruling employment
in the unit.
After the collective trade agreement is made, the
individuals who shall benefit by it are identified by
individual hirings. The employer, except as restricted
by the collective agreement itself and except that he
must engage in no unfair labor practice or discrimina
tion, is free to select those he will employ or discharge.
But the terms of the employment already have been
traded out. There is little left to individual agreement
except the act of hiring. This hiring may be by writ
ing or by word of mouth or may be implied from
conduct. In the sense of contracts of hiring, individual
contracts between the employer and employee are not
forbidden, but indeed are necessitated by the collective
bargaining procedure.
But, however engaged, an employee becomes entitled
by virtue of the Labor Relations Act somewhat as a
third party beneficiary to all benefits of the collective
trade agreement, even if on his own he would yield to
less favorable terms. The individual hiring contract
is subsidiary to the terms of the trade agreement and
may not waive any of its benefits, any more than a
shipper can contract away the benefit of filed tariffs,
the insurer the benefit of standard provisions, or the
utility customer the benefit of legally established
rates. ’ ’
If the majority representative is a labor union, it is imma
terial whether or not a minority member of the represented
craft or class objects to the representation. In all “ democ
racies” everywhere and through all times, numbers215 have
controlled. At least Republicans can testify to that after
an experience extending over the greater part of twelve
years, and we have not yet heard of a mandatory injunc
tion being granted to one because the economic favors
(jobs of bureaucrats) have gone to “ deserving” members,
including Negroes, of the party currently in the majority.
Republicans say that they have been an “ oppressed”
minority, as the Negro said in Steele v. Louisville <& N. R.
Co., the Brotherhood of Locomotive Firemen and Engine-
men, et al., (Ala., 1944) 16 So. 2d 416, in a complaint for an
injunction against enforcement of a collective agreement
as to seniority rights of locomotive firemen whereunder
Negroes were disfavored, and were wholly excluded from
membership in the labor union that collectively negotiated
the agreement; but dismissal of the complaint was affirmed.
Inter alia the Court said (16 So. 2d at 423, col. 1):
‘ ‘ Complainant is in the minority group of his craft,
and if he suffers any hardship, it is due to the fact of
control of the majority, which can in no event be con
sidered as a fraud, either in law or fact. There are
numerous instances where individual hardships have
been suffered for the good of the whole. The New
York court in O’Keefe v. Local 463, 277 N.Y. 300, 14
N.E. 2d 77, 80, 117 A.L.R. 817, speaking to this ques
tion, said: ‘ The question presented upon the appeal is
whether under its constitution and by-laws the union
has power and right to take action reasonably calcu
lated to advance its objects, even though such action 25
25“ In voting, as normally in fighting, that oldest method of
settling differences, numbers prevail. The majority is taken to
speak for the whole” (p. 145) ; “ the greater number must, in anv
ordered state, prevail, and the lesser must submit”, (p. 146.)
Bryce, Modern Democracies.
64
involves interference with the employment of a mem
ber who has committed no wrong and against whom
no charges have been preferred. This court has fre
quently sustained the right of labor unions to interfere
by lawful means between an employer and his em
ployees who are not members of the union where the
purpose of such interference is solely to advance the
interest of the members of the union. We have not
been oblivious to the consequent hardship imposed, at
times, upon individual employers or employees, but
for hardship to the individual resulting from action
reasonably calculated to achieve a lawful end by law
ful means the court can give no redress. * * * The
objects sought by a union and the “ unity of action”
to achieve them cannot be attained without some harm
to the individual.’ ”
I
The greater contains the less, Civil Code, § 3536, and if
Negroes may be wholly excluded, they may be offered
limited membership, as in an auxiliary local, National Fed
eration of Railway Workers v. National Mediation Board,
110 Fed. 2d 529, 537, certiorari denied 310 U.S. 628, 84 L.
Ed. 1399. They clearly have the benefits of the collective
agreement, equally with whites, working in identical jobs
at identical wages-'* 1 and under identical working conditions.
26This is important both to Negroes and to organized labor.
Negroes have a long history as competitive wage-cutters, and as
strikebreakers, as even Negro writers admit. “ Union antagonism
toward Negroes is largely a result of the past practice of em
ploying Negroes as a reserve labor force to depress the wages of
1 white workers and as strikebreakers”, Ottley, New World A-
Coming, 297. The Handbook of Labor Statistics, 1941 edition
(U.S. Dept, of Labor) is replete with detailed figures of de
pression of wages by Negroes; see pages 56 (building trades), 74
(common laborers), 123 (fertilizer industry), 154 (granite in
dustry), 253 (meat packing), 352 (street and sewer construction),
which merely sample the situation. “ Whatever the social and
65
I his union is not closed in the sense that the union shop
provision will operate to keep Negroes out of work or de
prive them of the benefits of the collective agreement of
the craft. Those benefits have flowed from the collective
bargaining of the craft, as in the case of the Negro brake-
man claiming under the collective contract negotiated by
the white brakeman’s union in Yazoo & M. V. R. Co. v.
Sideboard, 161 Miss. 4, 133 So. 669. “ He who takes the
benefit must bear the burden”, Civil Code, § 3521. The
burden is dues. Hues are the life blood of labor organiza
tions, vital to existence and function, without which effec
tive collective bargaining cannot be had. The fundamental
basis of the union shop is simply that the benefits and
burdens should go together.
“ In objecting to the open shop, Samuel Gompers set
forth the union position on the closed shop, or union
shop, as the majority of the old unionists prefer to
call it—in the following words: What the union
workers in a union shop declare is this: ‘We will not
work in this establishment if non-union workers are
historical causes, it is a fact that the colored people in this
country are located on a much lower economic scale, with re
spect to both productivity and income, than the rest of the
population”, Leven, The Income Structure of the Urvited States
(Brookings Institution, 1938), p. 60. Garvey, a Negro leader with
a wide following introduced “ Garveyism” : “ If the Negro takes
my advice he will organize by himself and always keep his scale
of wage a little lower than the whites”, Spero and Harris, The
Black Worker (Columbia University Press, 1931), p. 136. In an
open manifesto to organized labor they have self-styled themselves
“ black scabs” and boasted of past, and threatened future, strike
breaking, citing steel as a notable example, Wesley, Negro Labor
in the United States 1850-1925, (Vanguard Press, 1927), eh. IX,
“ Organized Labor and the Negro”, p. 276 (reprinted in Modern’
Library No. 163, Calverton, An Anthology of American Negro
Literature, 339, at 359). See also Northrup, Organized Labor and
the Negro (Harper & Bros., 1944).
66
employed. They may, of course, be employed, and the
employer has the right to employ them, if he chooses,
but in case of the exercise of that right we shall be
compelled to decline to continue at work. Non-union
men may work in this plant, but if they do, we shall
cease to work in this plant. We do not propose to
work with those who are unwilling to assist in securing
improvements in conditions of work, improvements in
wages, and the establishment of reasonable hours of
labor.’ That is precisely the union position in the
union shop toward the employment of non-union
workers.”
Toner, The Closed Shop, (1942) p. 148.
The worker under a collective contract who does not pay
dues to the negotiator of the contract is simply a parasite
on the body of organized labor:
“ Organized labor sets the pace for all who are em
ployed in industry. I t fixes the standard of wages and
working conditions, insisting and demanding that they
shall at least be such as will enable the worker to live
and maintain his self-respect. In whatever craft or
trade, when the subject of wages and working condi
tions is under consideration thought immediately turns
to the standards established by the union of that trade.
In some degree these standards are reflected even
among the unorganized workers, so that whatever
gains the unorganized man may make is found to be
wholly due to the influence of the union upon that
particular industry. We find, therefore, that the un
organized worker receives the benefit of every im
provement in conditions that is secured by organized
labor. Yet he assumes none of the responsibility that
accompanies such improvement. He permits his fellow
workers to fight his battles for him, and he accepts his
share of the fruits of their victory, won by sacrifice
67
and hard work. If there was no union in his craft he
could not gain any of these benefits.”
Saposs, Readings in Trade Unionism, (The Workers’
Library, 1927) pp. 92-93.
“ The Negro’s presence in the port [New York water
front, after arrival as a strikebreaker] is now accepted
by the white man. He has a right to be there; he has a
right to work; he has a right to belong to the union.
Yet he is by no means regarded as an equal. ‘We are
in the union today,’ said a Negro union official, ‘be
cause the white man had to take us in for his own
protection. Outside the organization the Negro could
scab on the white man. Inside he can’t. In return for
this we get a share of work, the protection of the
union contract and organization support.’ ”
Spero and Harris, The Black Worker, 199-200.
Dues are not “ tribute” as contended by the Negroes in the
Court below but are, as soundly ruled by the Bureau of
Internal Revenue (Internal Revenue Bulletin, 1944, No. 1,
p. 11), simply “ an ordinary and necessary business ex
pense” . The Bureau’s ruling reads:
“ Advice is requested as to the deductibility for
Federal income tax purposes of the initiation fee re
quired to be paid by A to a labor union in order to
obtain employment.
The M Association, including its district organiza
tions, district councils, and local unions, has been held
to be exempt from Federal Income taxation under sec
tion 101(1) of the Internal Revenue Code as a labor
organization. One of the constituent local unions in
cluded in such exemption is local No........., the consti
tution of which provides in part as follows:
68
* * * The initiation fee of this union shall be lOx
dollars, payable in full on approval of application,
together with three months’ dues.
The quarterly dues of the instant local union are x
dollars, payable in advance, and the members are
subject to assessments. The initiation fee is required
of everyone becoming a member. Its secretary states
that it is necessary for an individual to procure mem
bership in the union in order to obtain employment in
the field of labor in which the union operates.
I t is held that the initiation fee required to be paid
by A to the labor union in order to obtain employment
represents an ordinary and necessary business ex
pense, and the amount of the fee may be deducted
from gross income for the taxable year in which paid.
(Cf. O.D. 450, C. B. 2, 105 (1920).)”
Numbers control. If Negroes numerically dominate an
industry they can under the Wagner Act obtain a closed
shop by contract restricting employment “ to members of
the Union or those holding permits” 27 from the Union, as
in the case of the oyster shuckers and packers in F. F. East
Co. v. United Oystermen’s Union, 130 N. J. Eq. 292, 21 Atl.
2d 799. They may picket to have white workers replaced
by Negroes, as in New Negro Alliance v. Sanitary Grocery
Co., 303 U.S. 552, 82 L. Ed. 1012. They may have a non
contractual28 but none-the-less practical union shop, as in
the case of the Pullman porters, Northrup, Organised
Labor and the Negro, 75-78, and the Pullman railway shop,
which they first entered as strike-breakers in the nation-
-7As to working permits in a union shop, see also Murphy v.
Higgins, 12 N.Y.S. 2d 913, affirmed 23 N.Y.S. 2d 552.
28It is generally asserted that under the Railway Labor Act,
distinguishing from the Wagner Act, closed shops are forbidden.
69
wide stoppage of shopmen in 1922, idem, 78-79, and in the
all-Negro shipyard of Sun Shipbuilding and Dry Dock
Company under a Negro personnel manager in Pennsyl
vania, idem, 220.
However, the record at bar clearly shows only 1,500
Negroes in a total of 17,000 employes of Marinship, or 1,500
to 15,000, i.e., one in ten, yet no Negro was refused work.
One in ten is a national average of the population of the
United States;-” in March, 1940, when the census was taken
the California average was 2 per cent.
“ Approximately 228,000 workers were employed in
the shipbuilding industry in December 1940. By Sep
tember 1942, employment in this industry had risen to
1,200,000, and before the end of 1943, it is expected to
reach 1,500,000. Because the demand for shipyard
labor is necessarily concentrated in a relatively few
areas, most of the needed manpower has to be im
ported from other regions. * * *
The decennial census of 1910 listed 67,066 workers
in the ‘ship and boat building’ industry. Of these
4,347, or 6.5 per cent, were colored. Approximately
-°Embree, Brown Americans, The Story of a Tenth of the
Nation, (Viking Press, 1943) p. 26. The 1940 census figure was
9.7 per cent, or 12,865,518 Negroes in a total population of
131,669,275. In California in March, 1940, when the census was
taken, there were 124,306 Negroes (61,210 male, 63,096 female)
or 2 per cent of the total population. The population in cities of
over 100,000 was as follows: Long Beach, 610; Los Angeles,
63,774 ; Oakland, 8,462; Sacramento, 1,468; San Diego, 4,143; San
Francisco, 4,846. In what the 1940 census groups as the San
Francisco-Oakland Metropolitan District (counties of San Fran
cisco, San Mateo, Alameda, Contra Costa, eastern Marin and
southern Solano, i.e., Sausalito, Mill Valley, San Rafael, etc., in
Marin, and Vallejo and Benicia in Solano), the total population
was 1,428,525, and contained 19.768 Negroes, or 1.4 per cent.
Alameda County was highest in the Metropolitan District, with
12,235 Negroes or 2.4 per cent in a total of 513,011.
70
65 per cent of the Negroes were unskilled laborers, and
most of the remainder were semiskilled ‘operatives,’
despite the fact that almost two-thirds of all shipyard
workers were classified as skilled.
During World War I, the industry expanded rapidly,
so that, by the end of 1918, some 381,500 workers were
employed in yards constructing ships for the Emer
gency Fleet Corporation. Approximately 10 per cent,
or 38,723, of these workers were Negroes. The ma
jority of the Negroes were found in unskilled jobs, but
nearly 20 per cent were listed as skilled. Approxi
mately 80 per cent of the Negroes were employed in
shipyards in the South and in the Middle Atlantic
states, but some also found work in New England, on
the Great Lakes, and on the Pacific coast.
Organized labor receivevd its first important recog
nition in the shipbuilding industry during World War
I. An agreement was reached between the Emergency
Fleet Corporation and the Metal Trades Department
of the American Federation of Labor, which estab
lished the Shipbuilding Labor Adjustment Board for
the purpose of handling questions of wages and in
dustrial relations in the industry. By 1919, the Metal
Trades Department had obtained collective agreements
with most of the nation’s shipyards, but in only a few
on the Pacific coast were closed-shop provisions in
cluded in them.”
Northrup, Organized Labor and the Negro, (1944),
pp. 210-211.
71
The [March] 1940 census gives some breakdowns:
Boilermakers (male):
Total employed 27,589
—White 27,066
—Negro 506
—other races 17
Total seeking work 3,278
—White 3,206
—Negro 67
—other races 5
Ship and boat building and repairing (male):
Total employed 150,265
—White ’ 14:0,249
—Negro 9,707
—other races 309
Total seeking work 9,665
—White 8,830
—Negro 815
—other races 20
(16th Census, Vol. I l l , The Labor Force, Part I.
United States summary, pp. 88 and 188.)
We are utterly unable to perceive any disfavor of the
Negro in work opportunity at Marinship; and we think
the numbers stated show the clear right of the white ma
jority of organized labor to set the pace in wages, hours
and working conditions for all, white, yellow and black.
There is white representation and there should be white,
yellow and black dues.
72
Negroes did not pioneer the Rocky Mountain and Pacific
regions,30 but, notwithstanding the horror with which the
3°Myrdal, An American Dilemma, The Negro Problem and
Modern Democracy, (Harper & Bros., 1944) pp. 1 8 6 -187 ‘Negroes
did not participate in the settlement of the West. In fact, there
are not many Negroes in the West even today. In 1940 only 2.2
percent of all American Negroes lived west of the Mississippi
River (outside of Texas, Oklahoma, Louisiana, Arkansas, Missouri,
which states may be considered as part of the South rather than
the West). Most of the Negro migration to the West occurred
in the last decade: the Western population of Negroes increased
21.1 per cent between 1930 and 1940. But there was little migra
tion when the West was a frontier, and land was cheap. In 1890
there were only 100,986 Negroes in the West, in 1910 still only
135,872. The reasons for this are not clear, and some historian
can do a service by investigating the problem. We know that
the settlement of Negro freedmen in the West was a frequently
discussed possibility immediately after Civil War. A few move
ments to get away from the South developed rather soon. By far
the biggest one was to Kansas, and may have brought as many
as 40,000 Negroes to that state. There are reasons to believe that
the lack of capital and experience on the part of Southern Negroes
is only a small part of the explanation as to why westward
migration generally became abortive. There were Negroes who
had the little capital necessary to get started on their own in the
West; others could have begun as laborers, who were needed not
only on the farms but in the huge construction work going on.
The primary explanation seems to be that in rural areas of the
West, white settlers decided that there were not to be any
Negroes. The same seems to have been true in most rural areas
of the Northeast and in most small towns of the entire North.
The closer neighborhood controls in smaller communities seem to
have blocked the Negro from moving in when he was no longer
protected as a slave. Even apart from actual pressure there
must have been imagined pressure: individuals in a lower caste,
like the Negroes, are always on the lookout for discrimination
and intimidation and probably felt that it was not safe to venture
into the loneliness of a small community. At any rate, it soon
became a popular belief among Southern Negroes that the only
outlet from the Southern Black Belt was to the cities and pref
erably to the big cities, where Negro neighborhoods were already
established. Negro migration thus early tended to become migra
tion between fairly large-sized Negro communities or to l)e stopped
altogether. ’ ’
73
California miners of 1849 took an economic view31 of the
free Negroes before Emanicipation, they are afford equal
opportunity to work in the shipyards of California at equal
wages, hours and working conditions obtained under the
Master Agreement by white organized labor. The union
shop does not stand in their way and it is a valid union
shop.
There is an argumentative allegation in the complaint
that the conduct of the defendants is contrary “ to natural
justice’’. (Complaint, XI, T. 10, lines 2 and 3.) We quote
a passage from McLerni v. The Workers’ Union, (1929) 1
Ch. 602, 624:
“ Eminent judges have at times used the phrase ‘the
principles of natural justice.’ The phrase is, of course,
used only in a popular sense and must not be taken to
mean that there is any justice natural among men.
Among most savages there is no such thing as justice
in the modern sense. In ancient days, a person
wronged executed his own justice. Amongst our own an
cestors, down to the thirteenth century, manifest felony,
such as that of a manslayer taken with his weapon,
or a thief with the stolen goods, might be punished by
summary execution without any form of trial. Again
every student has heard of compurgation and of
ordeal; and it is hardly necessary to observe that (for
example) a system of ordeal by water in which sinking
was the sign of innocence and floating the sign of
guilt, a system which lasted in this country for hun
dreds of years, has little to do with modern ideas of
justice. It is unnecessary to give further illustrations.
31 As revealed in the debates of the Constitutional Convention,
well summarized in Goodwin, The Establishment of State Gov
ernment in California, ch. VI, “ The Free Negro Question”, pp.
108-132.
74
The truth is that justice is a very elaborate concep
tion, the growth of many centuries of civilization; and
even now the conception differs widely in countries
usually described as civilized.”
The matter at bar is not in a state of “ nature” but is
under the policy and rules prescribed by the Congress.
The law of “ nature” simply leads to race riots.
(c) The Executive Order does not destroy the union shop.
The complaint incorporates as an exhibit Executive
Order 9346, which we print as Appendix A. I t is an
amended form of Executive Order 8802,32 of June 25, 1941,
which we print as Appendix B. The complaint makes an
argumentative allegation that segregation of Negroes in
an auxiliary lodge violates the Executive Order. (Com
plaint, XI, T. 10, lines 8-12, and XII, T. 10, lines 24 and
25.) The ordering portions are addressed to, 1. “ All con
tracting agencies of the Government” , and 2. “ All depart
ments and agencies of the Government” ; i.e., not against
labor organizations. In the recitals, there is a declaration
of executive policy against discrimination in employment,
, and it is stated to be the duty of labor organizations to
/ further “ this policy” , i.e., to see that there is no discrimi-
) nation in employment. The record at bar shows employ-
I ment of Negroes, full employment, and at non-discrimina-
tory wages, hours and working conditions. The dominant
object is satisfied. The Order discloses no intent to legis
late about membership in labor organizations, and the
32Amended by Executive Order 8823 merely to raise com
mittee membership from a chairman and four members to a
chairman and five members.
75
Order is not to be construed as containing an intent to so
legislate, otherwise a Court would merely have been astute
to find invalidity. The Congress may select the President
or some other instrumentality to find facts or to follow
legislative standards or to administer the details of laws,
hut cannot delegate or abdicate to the Executive the power
of making laws. The subject is fully discussed in Panama
Refining Co. v. Ryan, 293 U.S. 388, 79 L. Ed. 446, and
8cheekier v. U.S., 295 U.S. 495, 79 L. Ed. 1570, wherein
Executive Orders were held invalid because legislative in
character. The case at bar is clearer, because here the
Executive Order did not arise out of or upon any Act of
the Congress, but simply out of needling by a Negro politi
cal pressure group that threatened a picket line. The story
is fully told by Negro writers: Ottley, New World A-Com-
ing, (1943) ch. XX, “ Executive Order Number 8802” , pp.
289-305; Earl Brown, American Negro and, the War,
(H arper’s Magazine, April 1942), 545-552, an extract from
which we print as Appendix C. Of course a “ directive” of
an executive is not the equivalent of an “ act” of the legis-
tive. That the Federal Department of Justice is well aware
of the situation is clear from their confession in the suit
brought by Montgomery Ward Company against the War
Labor Boai’d in the Federal District Court for the District
of Columbia, wherein the Department of Justice admitted
that Executive Order 9017 (War Labor Board) did not
“ fix or a lter” the “ legal rights” of parties, and imposed
only a “ moral obligation” without sanctions or penalties,
and that committee or administrative “ directives” there
under “ are in reality mere declarations of the equities of
each industrial dispute” , i.e., mere appeals to public opin
76
ion. (Labor Relations Reporter, January 31, 1944, Vol. 13,
page 645.) Giving due consideration, as one should, to
expressions of the chief executive, one may still conclude
that the problem at hand is too delicate to be solved out
of hand by the fiat of a committee, or by any unrealistic
and unenforceable edict, and the name of the committee is
of no consequence, whether it be called Fair Employment
Practices Committee or by some other name. The Com
mittee is not ending, but is simply aggravating, the
problem. Labor organizations have been wrestling with
this race problem ever since Emancipation, and some idea
of the present day scope of the problem may be had from
reading our Appendix D. (Extract from Northrup, Orga
nized Labor and the Negro, Harper & Brothers, 1944, ch. I,
The General Picture, pp. 1-5.) For a pioneer study, see
Wolfe, Admission to American Trade Unions, (Johns Hop
kins Press, 1912) ch. 6, Admission of Negroes, pp. 112-134.
The “ public policy” of this century-old matter is a
matter for the legislative, not the executive nor the judi
ciary. The National Labor Relations Act and the War
Labor Disputes Act are still the law that governs the case
at bar.
III.
EVEN IF IT BE ASSUMED THAT A CAUSE OF ACTION IS
STATED, NEVERTHELESS THE ORDER APPEALED FROM
IS INAPPROPRIATE.
In the case of Durkee v. Murphy, (Md., 1942) 29 Atl.
2d 253, discrimination against Negroes was found in the
segregation of them in using public golf links maintained
77
by the City of Baltimore, and in affording inferior links
to them. The lower Court sought to remedy the situation
by a mandamus compelling admission of Negroes to the
superior links used by the whites. On appeal the ruling
was reversed, and inter alia it was said:
‘ ‘ Taking the action as authorized by local law, then,
and assuming for the purposes of the argument that
the appellee has been deprived by it of equal protec
tion of the laws, what is it that he may demand as a
remedy. I t is not necessary that the inequalities be
removed by abandoning segregation, and that he be
admitted to all courses along with the white players
indiscriminately, but that they be removed in any one
of several possible ways in the discretion of the Park
Board, that the course assigned to his race be made
substantially equal, that he be admitted to one of the
other courses, or to all, as the Board may decide. And
in attempting to deny the Board any latitude of discre
tion an error has occurred throughout the proceedings.
The petition for the writ prayed ‘that the respondents
and each and every of them be required and directed
to sell greens fee tickets at each and every golf course
owned by the Mayor and City Council of Baltimore,
and under the charge and control of the respondent
Park Board, to your petitioner and to all those who
may apply for such greens fee tickets, irrespective of
race, creed, or color.’ And the order for the writ
directed that it should issue ‘as prayed in the peti
tion.’ The writ accordingly commanded that greens
fee tickets be sold at each and every course. And the
constitutional provision for equal protection of the
laws does not afford that remedy. Plessy v. Ferguson,
163 U.S. 537, 41 L. Ed. 256. Not only is segregation
within the power and discretion of the Board; it is
consistent with the constitution that some adaptation
78
to special needs and requirements of the Negro players
be made. Berry v. Durham, 186 N.S. 421, 119 S.E.
748. Nine holes for the small number of players might,
for instance, be found upon inquiry to be adequate
for them. So far as the Board has discretion, the writ
of mandamus cannot be issued to control their action.
Thomas v. Field, 143 Md. 128, 131, 122 A. 25.
By this pursuit of the wrong remedy for the alleged
unequal treatment, therefore, the proceedings were
rendered erroneous. A demurrer filed to the petition
which was overruled, should have been sustained, and
the order for the writ and the consequent command in
the writ, were erroneous, and the order must be re
versed, and the case remanded for anew trial.”
As pointed out, supra, the cases of Miller v. Ruehl, 2 N.Y.S.
2d 394, Murphy v. Higgins, 12 N.Y.S. 2d 913 affirmed 23
N.Y.S. 2d, and International Association of Machinists v.
State, 15 So. 2d 485, rule remediless a complainant who
contends that a closed shop creates a monopoly of work
that excludes him, upon the ground that the question of
public policy is for the legislature, not the judiciary. The
Courts in New Jersey, however, judicially legislate a
policy, Wilson v. Newspaper and Mail Deliverers’ Union,
197 Atl. 720, 123 N.J. Eq. 347, Carroll v. Local 269 Inter-
natwial Brotherhood of Electrical Workers, 31 Atl. 2d 223,
133 N.J. Eq. 144. As to those cases, we first say that they
were treated as intrastate cases not touching the National
Labor Relations Act, and as to remedy, the order in the
Wilson case was simply, “ Let an injunction issue restrain
ing defendant from interfering with complainant’s em
ployment” , and in the Carroll case, the conclusion of in
79
feasibility was, “ The relief sought by the complainants
will not be granted on this preliminary application” , hence
it may be that we may assume that what was written as a
premise of that conclusion is to be considered as a politico-
economic essay in the guise of a judicial opinion, intended
as gentle mediatory pressure for the parties to ponder as
“ law” , with an interim hope of the chancellor that the
case would not reach final hearing. In any event, it does
not guide to a form of remedy outside the Congress.
Moreover, the order at bar requires admission of
Negroes without limitation of number, whereas equal treat
ment would require a limitation of number in proportion
to the number of white workers, as in the analogy of the
Housing case of Favors v. Randall, 40 Fed. Supp. 743.
IV.
THE ENFORCEMENT BY THE UNION OF THE UNION SHOP
PROVISION OF THE MASTER AGREEMENT SHOULD NOT
IN ANY EVENT BE ENJOINED WITHOUT REQUIRING THE
NEGROES TO IMPOUND IN COURT THE REQUIRED INITIA
TION FEES AND MONTHLY DUES PENDING THE OUTCOME
OF THE CONTROVERSY.
The effect of the order granted to the plaintiffs by the
Court below is to enable them to obtain all the benefits of
the Master Agreement negotiated by the union and under
which the Negroes accepted work, without sharing the
burden with the white workers who are paying dues. That
may fit the length of a chancellor’s foot but we cannot
see how it reaches his conscience. In the equity adminis
tered in other than labor relations cases it is frequently
80
stated, and often held, that a complainant who does not do
equity will not be granted a remedy. Adopting complain
an t’s simile of a tax, we invoke the chancery rule that an
injunction, the “ strong arm of equity” , “ is not ex debito
justitiae”, but “ the granting of it must always rest in
the exercise of a sound discretion, governed by the nature
of the case”, 14 R.C.L. 307. The court has here a novel
case, and the nature of the case is such that if a final
decree goes against the complainants, and if by that time
the work situation in shipyards has substantially changed,
appellant can only whistle for the dues owing to it. The
complaint says that there are 1,000 of the class-plaintiffs.
Multiply that number by the number of months you may
estimate, and you will see the extent of the equities lost to
these appellants. Obviously, if an injunction is to issue at
all, the only sound way to meet the novel situation at bar
is to make the remedy as to each of the 1,000 in the class
dependent from month to month on impounding of dues,
after an impound of initiation fees. There are parallels in
the practice: (1) the street car fare case now pending with
respect to the privately owned street car line in San Fran
cisco, which has no better right to judicial protection than
this appellant union (and see the impounding order in S um
Francisco Gas & Electric Co. v. San Francisco, 164 Fed.
884, 893); (2) the rule in tax cases, as to which we quote
Charles v. Crescent City, 14 C. 2d 234, 236, 93 Pac. 2d 129,
130, col. 2:
“ Defendants, however, point out that in seeking
equitable relief, as this complaint does in its demand
for an injunction against the collection of the tax, a
distinction must be drawn between situations where it
81
is claimed that the tax is wholly unauthorized, as
where there is no jurisdiction over the property, and
where there is jurisdiction but the proceedings were
irregular. It is conceded in this case that plaintiffs
own property subject to tax and their only objection
is that the taxes were irregularly assessed and levied.
It follows, under the settled rule, that before equitable
relief can be given in such a case, the property owner
must recognize that a tax in some amount is actually
owed, and must pay or tender that sum which is legal
and fair, and which therefore, in good conscience he
ought to pay. DeMille v. Los Angeles, 25 Cal. App. 2d
506, 77 P. 2d 905; Los Angeles v. Ransohoff, 24 Cal.
App. 2d 238, 74 P. 2d 828; Esterbrook v. O’Brien, 98
Cal. 671, 33 P. 765; Couts v. Cornell, 147 Cal. 560, 82
P. 194, 109 Am. St. Rep. 168.”
Even on plaintiff’s theory, there is no lack of “ jurisdic
tion” under the union shop provision, but simply “ irregu
larity” through discriminatory segregation. The basis of
the rule is found in benefits received:
“ In Weber v. San Francisco, 1 Cal. 455, the court
said, speaking of an attempt to resist the collection of
an assessment for improving a street: ‘The work has
been conpleted, and after plaintiff has derived all the
benefit and profit therefrom * * * he comes into court
when he is called upon to pay his portion of the ex
pense, and asks in effect that he may be exempted
from the general burden imposed for the common
benefit of himself and others, on the ground that there
are some irregularities in the mode of making the
assessments. I think that should not be permitted.”
Easterbrook v. O’Brien, 98 Cal. 671, 33 Pac. 765.
The rule is therefore as old as the California judiciary, and
traces from the first volume of reports to the present.
82
For all the reasons stated, the order granting an injunc
tion should be reversed.
Dated, San Francisco,
May 3,1944.
Respectfully submitted,
Charles J . J anigian,
George M. Naus,
Attorneys for Appellants Local Union No. 6
of International Brotherhood of Boiler
makers, Iron Shipbuilders and Helpers
of America, Ed Rainbow, as Business
Agent of said Local 6, and E. Medley, as
President of said Local 6.
(Appendices A, B, C and D Follow.)
Appendices A, B, 0 and
Appendices
Page
A. Executive Order 9346............................................... i
B. Executive Orders 8802 and 8823............................ v
C. Extract from Earl Brown, American Negroes and
the War, Harpers Magazine, April 1942......... viii
D. Northrup, Organized Labor and the Negro (Har
per & Brothers, 1944)............................................. xiii
Appendix A
EXECUTIVE ORDER 9346.
F urther Amending E xecutive Order N o. 8802 by
E stablishing a New Committee on F air E mploy
ment P ractice and Defining Its P owers and Duties.
In order to establish a new Committee on Fair Employ
ment Practice, to promote the fullest utilization of all
available manpower, and to eliminate discriminatory em
ployment practices, Executive Order No. 8802 of June 25,
1941, as amended by Executive Order No. 8823 of July 18,
1941, is hereby further amended to read as follows:
“ W hereas the successful prosecution of the w ar de
mands the maximum employment of all available workers
regardless of race, creed, color, or national o rig in ; and
“ W hereas it is the policy of the United States to en
courage full participation in the war effort by all persons
in the United States regardless of race, creed, color or
national origin, in the firm belief that the democratic way
of life within the nation can be defended successfully only
with the help and support of all groups within its borders;
and
“ W hereas there is evidence tha t available and needed
workers have been barred from employment in industries
engaged in w ar production solely by reason of their race,
creed, color, or national origin, to the detrim ent of the
prosecution of the war, the w orkers’ morale, and national
unity:
“ Now, T herefore, by virtue of the authority vested in
me by the Constitution and statutes, and as President of
n
the United States and Commander in Chief of the Army
and Navy, I do hereby reaffirm the policy of the United
States that there shall be no discrimination in the employ
ment of any person in war industries or in Government by
reason of race, creed, color, or national origin, and I do
hereby declare that it is the duty of all employers, includ
ing the several Federal departments and agencies, and all
labor organizations in furtherance of this policy and of
this Order, to eliminate discrimination in regard to hire,
tenure, terms or conditions of employment, or union mem
bership because of race, creed, color, or national origin.
“ I t is hereby ordered as follows:
1. All contracting agencies of the Government of the
United States shall include in all contracts hereafter nego
tiated or renegotiated by them a provision obligating the
contractor not to discriminate against any employee or
applicant for employment because of race, creed, color, or
national origin and requiring him to include a similar
provision in all subcontracts.
“ 2. All departments and agencies of the Government of
the United States concerned with vocational and training
programs for war production shall take all measures ap
propriate to assure that such programs are administered
without discrimination because of race, creed, color, or
national origin.
“ 3. There is hereby established in the Office for Emer
gency Management of the Executive Office of the President
a Committee on Fair Employment Practice, hereinafter
referred to as the Committee, which shall consist of a
Chairman and not more than six other members to be
Ill
appointed by the President. The Chairman shall receive
such salary as shall be fixed by the President not exceed
ing $10,000 per year. The other members of the Com
mittee shall receive necessary traveling expenses and, un
less their compensation is otherwise prescribed by the
President, a per diem allowance not exceeding twenty-five
dollars per day and subsistence expenses on such days as
they are actually engaged in the performance of duties
pursuant to this Order.
“ 4. The Committee shall formulate policies to achieve
the purposes of this order and shall make recommendations
to the various Federal Departments and agencies and to
the President which it deems necessary and proper to
make effective the provisions of this Order. The Com
mittee shall also recommend to the Chairman of the War
Manpower Commission appropriate measures for blunging
about the full utilization and training of manpower in and
for war production without discrimination because of race,
creed, color, or national origin.
“5. The Committee shall receive and investigate com
plaints of discrimination forbidden by this Order. It may
conduct hearings, make findings of fact, and take appro
priate steps to obtain elimination of such discrimination.
“ 6. Upon the appointment of the Committee and the
designation of its Chairman, the Fair Employment Prac
tice Committee established by Executive Order No. 8802 of
June 25, 1941, hereinafter referred to as the old Committee,
shall cease to exist. All records and property of the old
Committee and such unexpended balances of allocations or
other funds available for its use as the Director of the
IV
Bureau of the Budget shall determine shall be transferred
to the Committee. The Committee shall assume jurisdiction
over all complaints and matters pending before the old
Committee and shall conduct such investigations and hear
ings as may be necessary in the performance of its duties
under this Order.
“ 7. Within the limits of the funds which may be made
available for that purpose, the Chairman shall appoint and
fix the compensation of such personnel and make provision
for such supplies, facilities, and services as may be neces
sary to carry out this order. The Committee may utilize
the services and facilities of other Federal departments
and agencies and such voluntary and uncompensated
services as may from time to time be needed. The Com
mittee may accept the services of State and local authori
ties and officials, and may perform the functions and duties
and exercise the powers conferred upon it by this Order
through such officials and agencies and in such manner as
it may determine.
“ 8. The Committee shall have the power to promulgate
such rules and regulations as may be appropriate or neces
sary to carry out the provisions of this Order.
“ 9. The provisions of any other pertinent Executive
order inconsistent with this Order are hereby superseded.”
F ranklin D. R oosevelt
T he W hite H ouse
May 27,1943.
V
Appendix B
[EXECUTIVE ORDER 8802, AND AMENDATORY
EXECUTIVE ORDER 8823]
EXECUTIVE ORDER 8802.
R eaffirming P olicy of F ull P articipation in the
Defense P rogram by all P ersons, R egardless of
R ace, Creed, Color, or National Origin, and
Directing Certain Action in F urtherance of
Said P olicy.
W hereas it is the policy of the United States to encour
age full participation in the national defense program by
all citizens of the United States, regardless of race, creed,
color, or national origin, in the firm belief that the demo
cratic way of life within the Nation can be defended suc
cessfully only with the help and support of all groups
within its borders; and
W hereas there is evidence th a t available and needed
workers have been barred from employment in industries
engaged in defense production solely because of considera
tions of race, creed, color, or national origin, to the d e tri
ment of w orkers’ morale and of national unity;
Now, T herefore, by virtue of the authority vested in me
by the Constitution and the statutes, and as a prerequisite
to the successful conduct of our national defense production
effort, I do hereby reaffirm the policy of the United States
that there shall be no discrimination in the employment of
workers in defense industries or Government because of
race, creed, color, or national origin, and I do hereby de
clare that it is the duty of employers and of labor organiza
tions, in furtherance of said policy and of this order, to
provide for the full and equitable participation of all
workers in defense industries, without discrimination be
cause of race, creed, color, or national origin;
And it is hereby ordered as follows:
1. All departments and agencies of the Government of
the United States concerned with vocational and training
programs for defense production shall take special meas
ures appropriate to assure that such programs are ad
ministered without discrimination because of race, creed,
color, or national origin;
2. All contracting agencies of the Government of the
United States shall include in all defense contracts here
after negotiated by them a provision obligating the con
tractor not to discriminate against any worker because of
race, creed, color, or national origin;
3. There is established in the Office of Production Man
agement a Committee on Fair Employment Practice, which
shall consist of a chairman and four other members to be
appointed by the President. The chairman and members of
the Committee shall serve as such without compensation
but shall be entitled to actual and necessary transporta
tion, subsistence, and other expenses incidental to perform
ance of their duties. The Committee shall receive and
investigate complaints of discrimination in violation of the
provisions of this order and shall take appropriate steps
to redress grievances which it finds to be valid. The Com
mittee shall also recommend to the several departments
and agencies of the Government of the United States and
to the President all measures which may be deemed by it
vi
V l l
necessary or proper to effectuate the provisions of this
order.
F ranklin D. R oosevelt
The White Hoicse,
June 25,1941.
EXECUTIVE ORDER 8823.
P roviding F or an Additional Member of T he
Committee on F air E mployment P ractice in the
Office of P roduction Management, E stablished
by Section 3 of E xecutive Order N o. 8802 of
J une 25, 1941.
By virtue of the authority vested in me by the Constitu
tion and the statutes, section 3 of Executive Order No. 8802
of June 25, 1941, establishing in the Office of Production
Management a Committee on Fair Employment Practice
consisting of a chairman and four other members is hereby
amended to provide that the Committee shall consist of a
chairman and five other members.
F ranklin D. R oosevelt
The White House,
July 18,1941
V II1
Appendix C
[EXTRACT FROM EARL BROWN, AMERICAN NEGROES AND
THE WAR, HARPERS MAGAZINE, APRIL 1942, 545 AT 548-550.]
During the depression Negroes north of the Mason and
Dixon Line were often united by the New Dealers and also
by the Communists into pressure groups to assist them in
putting over some New Deal or Communist program, such
as beating the bushes for votes for Mr. Roosevelt or
picketing relief agencies for more food, shelter, and cloth
ing. When in 1937 the Supreme Court decided in the case
of the New Negro Alliance against the Sanitary Grocery
Company of Washington, D. C., [303 U.S. 552, 304 U.S. 542,
82 L. Ed. 1012] that Negroes had a right to picket for jobs
wherever they were denied them because of color, and that
it was worse for employers to discriminate against them
on such grounds than to discriminate against labor unions,
a tremendous impetus was given to picketing for jobs by
Negroes in practically every large, city in the North and
even in a few cities in the South. Since the depression still
continued, however, the Negroes gained nothing more than
a few “ token” white-collar clerical and sales jobs in the
colored sections of some of the cities where they pursued
their picketing with industry.
Because they now fully understood the power of the
picket line, they were ready and anxious to march on
Washington when A. Philip Randolph, president of the
Brotherhood of Sleeping Car Porters, advanced the idea in
January, 1941, of organizing a Negro protest march on
Washington, because government officials, from the Presi
dent down to minor bureau chiefs, had persistently evaded
IX
the issue of combating discrimination in defense industries
as well as the government itself. As the time for the event
drew nearer some of the heads of the government became
alarmed; Randolph reported that a ranking New Dealer
had told him many government officials were asking,
‘ ‘ What will they think in Berlin! ’ ’
Receiving a telephone call from his good friend Mayor
LaGuardia of New York one day last June, about three
weeks before the march was scheduled to take place, Ran
dolph, who had assumed the position of chairman of the
March on Washington Committee, went to the Mayor’s
office in City Hall and there discovered, in addition to Mr.
LaGuardia, Mrs. Roosevelt, Aubrey Williams, administra
tor of the National Youth Administration, and Walter
White, secretary of the National Association for the Ad
vancement of Colored People. Getting to the point, Mrs.
Roosevelt said to Randolph: “ I am opposed to the march
on Washington because 1 fear the consequences to Negroes
if thousands of them march there in protest against job
discrimination in national defense industries.”
Declaring that Southern congressmen and others antago
nistic toward the colored race might unite and become even
more antagonistic if the march were held, the F irst Lady
strongly urged Randolph to call it off. “ I will ask the
President to call a conference to discuss this matter thor
oughly,” she promised Randolph. The Mayor and Mr.
Williams also tried to persuade the labor leader, the latter,
according to Randolph, saying, “ Never before has the
Administration been so concerned over Negroes. Every
body down there is talking about it.”
X
Nothing the group said, however, had any effect on
Randolph. “ The march must go on,” he said. “ I ’m cer
tain it will do some good. In fact, it has already done some
good; for if you were not concerned about it you wouldn’t
be here now discussing the question of racial discrimina
tion.”
Summoned to the White House by President Roosevelt
the week after the meeting in City Hall, Randolph found
himself at a curious meeting at which were present the
following: Mr. Roosevelt and two of his Cabinet members,
Secretary of War Stimson and Secretay of the Navy Knox;
William Knudsen and Sidney Hillman, co-administrators
of the late Office of Production Management; Mr. Williams,
Mayor LaGuardia, and Mr. White. Confronted with what
to them was an uncomfortable and embarrassing situation,
the high government officials hunted round for some kind
of formula that would prevent the march.
Although the President informed Randolph that he was
opposed to the march, the latter repeated what he had
said in the Mayor’s office in New York, but added, how
ever, that he would call off the march if the President
issued an executive order “ with teeth in i t ” prohibiting
discrimination in employment in defense industries and
the government itself. Emphasizing to Randolph that he
would not issue an executive order until the problem of
discrimination in defense industries had been thoroughly
studied and a recommendation made to him to that effect,
Mr. Roosevelt requested the conferees to adjourn to the
Cabinet room, form a committee, go out and study the
problem, and then report their findings to him.
When the statesmen and the Negroes convened in the
Cabinet room the Secretary of War was chosen as chair
XI
man of the meeting. Urging that the march not be held,
Mr. Stimson declared that although it “ takes time” to cope
“ satisfactorily” with the race problem in the Army, some
progress had been made and even more would be made in
the future. The Secretary of War cited the promotion of
former Col. Benjamin 0. Davis, Sr., to brigadier general
in the fall of 1940 (just before the elections) as an exam
ple of the colored man’s progress in the United States
Army.
With the date for the march only a few days away,
Randolph was summoned to Washington for a third con
ference. This time, however, he met only Mayor LaGuardia
and Aubrey Williams in the Mayor’s Office of Civilian
Defense headquarters.
“ I must tell you, Phil, it looks bad about that executive
order, ’ ’ the Mayor opened up. ‘ ‘ Those Southern congress
men are sore about this thing already and the Negroes will
certainly lose many of their ‘good white friends’ if you go
through with the march.”
When Randolph indicated no signs of weakening, the
Mayor produced a tentative draft of an executive order.
However it failed to include a clause that government de
partments as well as defense industries should not dis
criminate against persons because of race, religion, or
national origin, and the march leader refused to accept it.
A pretty good horse trader himself, Randolph informed
the Mayor when they convened again after lunch that he
had just talked to some Negro leaders and they had de
manded that a clause prohibiting discrimination in govern
ment departments be included in the proposed executive
order. After some more debate and a telephone call to the
X ll
White House, the President agreed to issue an executive
order intended to abolish all discrimination in employment
in defense industries and the government too. Randolph of
course called off the march.
Soon after he had issued the executive order (the second
one to be issued by a President directly concerning
Negroes; the first one was the Emancipation Proclama
tion), Mr. Roosevelt appointed a committee to see that it
was carried out. Named the President’s Committee on
Fair Employment Practice, it consists of the following
persons: Malcolm S. MacLean, President of Hampton In
stitute, chairman; David Sarnoff, president of the Radio
Corporation of America; Philip Murray and William
Green, presidents respectively of the CIO and A FL ; Aider-
man Earle B. Dickerson of Chicago and Milton P. Webster,
vice president of the Brotherhood of Sleeping Car Porters.
The last two members are Negroes. Mark Ethridge, pub
lisher of the Louisville Courier-Journal, the first chairman
of the committee, resigned last February. Because they
are often too busy to attend the committee’s meetings, Mr.
Murray and Mr. Green have two other officials of their
respective unions sit in for them.
Lawrence W. Cramer, former Governor of the Virgin
Islands, was named executive secretary of the committee,
and assisting him is a field staff of white and colored
workers. The committee is directly responsible to the
President, who may revoke a defense contract or dis
charge a government official if the committee certifies to
him that a defense firm or a government official has dis
criminated against a person because of race, religion, or
national origin.
Xlll
Appendix D
[NORTHRUP, ORGANIZED LABOR AND THE NEGRO, (HARPER
& BROTHERS, 1941) CH. I, THE GENERAL PICTURE, PAGES
1-5.]
CHAPTER I
THE GENERAL PICTURE1
The racial- policies of American trade unions vary from
outright exclusion of Negroes by some organizations to the
full acceptance of them with all privileges of membership
by others. Moreover, union policies toward Negroes are
somewhat fluid and subject to change if the circumstances
so warrant. For example, the appearance of a rival union
with a liberal ratial policy may result in a reversal of the
policies of its competitor which had up to that time dis
criminated against colored workers. On the other hand, the
presence of an exclusionist union in the same jurisdiction
with one which usually tolerates no discrimination may
cause the latter to relax its principles for fear that it will
alienate its predominately white membership.
The attitude of unions toward Negroes also often varies
within the same organization from region to region, de
pending upon local customs and the type of leadership that
is selected. I t sometimes happens that Negroes are refused
membership in an organization in one part of the county
while received freely by it in another. In one local union
a sympathetic president or business agent may play an
important role in cementing good feeling between the white
and colored workers; in a neighboring local of the same
’All numbered notes appear at end of book, pp. 259-88.
XIV
national union, a prejudiced leader may cause the whites to
exclude the Negroes.
Dynamic elements such as these prevent any clear-cut
classification of American labor unions according to their
racial policies. This fact should be borne in mind for the
discussion that follows* in which (1) union racial policies
will be classified and analyzed; (2) the position of the
American Federation of Labor; and (3) that of the Con
gress of Industrial Organizations will be set forth.
Union R acial P olicies Classified
At least3 fourteen American unions specifically exclude
Negroes from membership by provisions to that effect in
either their constitutions or their rituals. Of these, six—
the Airline Pilots, the Masters, Mates, and Pilots, and the
Wire Weavers,4 all AFL affiliates, and the Train Dis
patchers, the Railroad Yardmasters of America, and the
Railroad Yardmasters of North America, which are un
affiliated—are of no appreciable importance in barring
Negroes from jobs since none of them has a membership
exceeding 3,000. Quite different, however, is the effect of
the remaining eight exclusionist unions on job opportuni
ties for colored workers, for they include some of the
larger and more influential organizations in the American
labor movement, namely: the International Association of
Machinists, the Railroad Telegraphers, the Railway Mail
Association, the Switchmen, all AFL affiliates, and the
Locomotive Engineers, the Locomotive Firemen and En-
ginemen, the Railroad Trainmen, and the Railway Con
XV
ductors, the independent railway brotherhoods.* In addi
tion,5 eight unions—six AFL affiliates, the Flint Glass
Workers, the Brotherhood of Electrical Workers, the
Plumbers and Steamfitters, the Asbestos Workers, Heat
and Frost Insulators, the Granite Cutters, and the Sea
farers, and two independent unions, the Marine Firemen,
and the Brotherhood of Railroad Shop Crafts—usually re
fuse admittance to Negroes by tacit consent. Nine others—
the Boilermakers, Iron Shipbuilders, Welders, and Helpers,
the Railway and Steamship Clerks, Freight Handlers,
Express and Station Employes, the Railway Carmen, the
Maintenance of Way Employes, the Blacksmiths, Drop
Forgers and Helpers, the Sheet Metal Workers, the Fed
eration of Rural Letter Carriers, the Rural Letter Car
riers’ Association, and the American Federation of Rail
road Workers—permit Negroes to join and give them the
privilege of paying dues, but limit their participation to
“ Jim Crow” auxiliary bodies which in one way or another
prohibit them from having a voice in the affairs of the
union, from negotiating their own agreements, or from
having an opportunity to advance in the occupational hier
archy.** All but the last two of these organizations are
likewise AFL affiliates.
* Typical is the constitution of the Locomotive Firemen, which
limits membership to “ white born, of good moral character . . . ”
**These restrictive rules are summarized as follows:
Before 1938, the Boilermakers excluded1 Negroes and the “ white”
clause is still retained in the ritual. The 1937 convention amended
the union’s rules to permit the chartering of Negro auxiliary
locals. The auxiliaries are limited to localities where a white local
exists and where there are sufficient Negroes employed to main
tain a local. Negroes have no voice in national union affairs, but
must obey all union rales. They cannot transfer except to other
auxiliary locals. They are dependent upon the business agent of
the “ supervising” white local for job assignments. Their oppor
tunities for promotion are severely restricted. And although they
XVI
To summarize the above in tabular form :
1. Union which excludes Negroes by provision in
ritual:
Machinists, International Association of (AFL)
pay the same dues as white members, they receive only half as
much in death and disability benefits and are not eligible for
voluntary insurance plans to which white members may subscribe.
(Cf. Brotherhood of Boilermakers, etc., Subordinate Lodge Con
stitution, ed. 1938, with idem., By-laws Governing Auxiliary
Lodges, ed. 1942.)
Before 1939, the Railway Clerks excluded Negroes, and the
“ white” clause is still retained in the union constitution. The
1939 convention empowered the Executive Counsel to establish an
auxiliary for Negroes. Auxiliary members must abide by all union
rules and pay the same dues as the white members, but they have
no voice in the governing bodies of the union. (See Brotherhood
of Railway Clerks, etc., Regulations for the Government of Lodges
of the Auxiliary, ed. 1940.)
“ On railroads where the employment of colored persons has
become a permanent institution they shall be admitted to mem
bership in separate lodges. Where these separate lodges of negroes
are organized they shall be under the jurisdiction of and repre
sented by the delegate of the nearest white local in any meeting
of the Joint Protective Board Federation or convention where
delegates may be seated.” (Brotherhood Railway Carmen, Sub
ordinate Lodge Co^nstitution, ed. 1941, sec. 6, clause C.)
“ Rights of membex*ship of the colored Maintenance of Way
Employes . . . shall be under the direct control of the System
Division . . . They shall be entitled to all the benefits and pro
tection guaranteed by the Constitution to its members and shall
be represented in the Grand Lodge by delegates of their own
choice selected from any white Lodge on the System Division . . .
where employed. Nothing in this section operates to prevent the
colored employes from maintaining a separate Lodge for social
purposes and to receive official communications and information
from the Grand Lodge and the System Division . . . ” (Brother
hood of Maintenance of Way Employes, Constitution, ed. 1940,
Art. XIII, sec. 1.)
“ Where there are a sufficient number of colored helpers, they
may be organized as an auxiliary local and shall be under the
jurisdiction of the white local having jurisdiction over that terri
tory . . . Colored helpers shall not transfer except to another
auxiliary local composed of colored members, and colored members
shall not be promoted to blacksmiths or helper apprentices and
m il not be admitted to shops where white helpers are now em
XVIX
II. Unions which exclude Negroes by provision in con
stitution :
A. AFL Affiliates
Airline Pilots ’Association
Master, Mates and Pilots, National Organi
zation
Railroad Telegraphers, Order of
Railway Mail Association
Switchmen’s Union of North America
Wire Weavers’ Protective Association,
American
B. Unaffiliated Organizations
Locomotive Engineers, Brotherhood of
Locomotive Firemen and Enginemen,
Brotherhood of
Railroad Trainmen, Brotherhood of
Railroad Yardmasters of America
Railroad Yardmasters of North America
Railway Conductors, Order of
Train Dispatchers’ Association, American
ployed.” (Brotherhood of Blacksmiths, etc., Constitution, quoted
in E. M. Stewart, “ Handbook of American Trade Unions,”
Bulletin No. 618, U. S. Bureau of Labor Statistics, Washington,
1936, p. 175.)
Negro sheet metal workers may be organized in separate locals
“ with the consent of the white local” of the locality or else in
“ auxiliary locals” if consent of the white local is not obtained.
Negro locals are under the supervision of the white locals. (See
Stewart, op. cit., p. 110.)
Both of the rural letter carriers’ unions prohibit Negroes from
holding office or from acting as delegates to conventions. (See
ibid., p. 309.)
The American Federation of Railroad Workers bars Negroes
from membership by constitutional provision, but it does admit
them to an auxiliary which denies them any voice in union affairs.
xvm
III. Unions which habitually exclude Negroes by tacit
consent:
A. AFL Affiliates
Asbestos Workers, Heat and Frost Insu
lators
Electrical Workers, International Brother
hood of6
Flint Glass Workers’ Union, American
Granite Cutters ’ International Association
Plumbers and Steamfitters, United Associa
tion of Journeymen
Seafarers’ International Union
B. Unaffiliated Organizations
Marine Firemen, Oilers, Watertenders, and
W ipers’ Association, Pacific Coast
Railroad Shop Crafts, Brotherhood of
IY. Unions which afford Negroes only segregated aux
iliary status:
A. AFL Affiliates
Blacksmiths, Drop Forgers and Helpers,
Brotherhood of
Boilermakers, Iron Shipbuilders, Welders,
and Helpers, Brotherhood of
Maintenance of Way Employes, Brother
hood of
Railway Carmen of America, Brotherhood
Railway and Steamship Clerks, Freight
Handlers, Express and Station Employes,
Brotherhood of
Rural Letter Carriers, Federation of
XIX
Sheet Metal Workers’ Internation Associa
tion
B. Unaffiliated Organizations
Railroad Workers, American Federation of
Rural Letter Carriers ’ Association
In most instances the exclusionist and discriminatory
practices of these unions have been in effect for many
years, and there is no doubt but that they have the support
of the majority of the membership of the unions. For de
spite the efforts of a number of members in several of
these organizations to have the anti-Negro provisions
erased, only two unions, the Commerical Telegraphers and
the Hotel and Restaurant Workers, both AFL, which once
adopted racial restrictions, later completely removed them
from their laws. Nor does it seem necessary to discuss at
great length the underlying motives which bring them into
being. Undoubtedly racial prejudice plays a part and par
ticularly so on the railroads, where a majority of the
exclusionist unions are found. Most of the railroad unions
came into being as fraternal and beneficial societies. To
admit Negroes to their ranks on an equal footing would be,
in the mincjs of many white members, tantamount to ad
mitting that the colored man is a social equal, and this the
majority of white railroad workers has always refused to
countenance.
But it is much more important to note that nearly all the
unions practicing discrimination—and railway labor or
ganizations are no exception—are organizations of skilled
craft workers.
S. F. No. 17,015
In the Supreme Court
OF THE
State of California
J oseph J ames, individually, and in a repre
sentative capacity for and on behalf of
1,000 other Negro workers similarly
situated,
Plaintiff and Respondent,
vs.
Marustship Corporation (a corporation),
L ocal U nion N o. 6 of I nternational
B rotherhood of B oilermakers, I ron
S hipbuilders and H elpers of A merica,
E d R ainbow , as Business Agent of said
Local 6, and E. Medley, as President of
said Local 6,
Defendants and Appellants.
BRIEF FOR RESPONDENT.
A ndersen & Resner,
George R . A ndersen,
H erbert R esner,
544 Market Street, San Francisco, California,
Attorneys for Respondent.
T hurgood M arshall,
69 Fifth Avenue, New York City, New York,
Attorney for the National Association
for the Advancement of Colored
People,
Of Counsel.
F e r n a u -W a l s h P r in t i n g C o . , S a n F r a n c is c o , C a l if o r n ia
Subject Index
I. Page
Questions in vo lved ............................................................................ 1
n.
Statement of the case........................................................................ 3
HI.
Argument .......................................................................................... 17
I.
Preliminary considerations ........................ 17
II.
It is contrary to the public policy of the State of California
for a labor organization to discriminate regarding mem
bership status of persons subject to its jurisdiction on the
basis of color alone........................................................................ 34
HI.
Denial of equal membership status by a labor organization to
workers solely on account of color is contrary to law ........ 44
IV.
An employer, possessing a contract with the United States
providing that the employer shall not discriminate against
workers on account of race, color, or origin, violates that
contract and offends the public policy of the state and
nation by participating in the discriminatory racial prac
tices of a labor organization..................................................... 57
Y.
The court has jurisdiction of the instant case........................... 64
VI.
Conclusion .......................................................................................... 72
Table of Authorities Cited
Cases Pages
Allen-Bradley Local, etc. v. Wisconsin Employment Rela
tions Board, 315 U. S. 740, 62 S. Ct. 820, 86 L. Ed. (2d)
H54 .................................................................................................68,69
Appalachian Electrical Power Co. (CCA 4), 931 F. (2d) 985 66
Bridges v. California, 314 U. S. 252, 62 S. Ct. ,190, 86 L.
Ed. 192 .......................................................................................... 43
Brown v. Mississippi, 297 U. S. 278, 56 S. Ct. 461, 80 L. Ed.
682 .................................................................................................. 26
Buchanan v. Warley. 245 U. S. 60, 38 S. Ct. 16, 62 L. Ed.
149 .................................................................................................. 25
Cameron v. International Alliance of Theatrical Stage Em
ployees (N. J.), 176 Atl. 692, 97 A.L.R. 594............ 50, 52, 53, 54
Carlson v. California, 310 U. S. 106, 60 S. Ct. 746, 84 L. Ed.
1104 ................................................................................................ 43
Carroll v. International Bro. of Elec. Workers (N. J.), 31
Atl. (2d) 223 ................................................................................ 55
Chambers v. Florida, 309 U. S. 227, 60 S. Ct. 472, 84 L. Ed.
716 ................................................................................................... 26,27
Christoffel v. Wisconsin Employment Relations Board, 243
Wis. 332, 10 N. W. (2d) 197, cert. den. 320 U. S. 776. . . . 70
Dred Scott v. Sandford, 19 Howard (U. S.) 393, 15 L. Ed.
691 ................................................................................................... 22
Ellis v. American Federation of Labor, 48 Cal. App. (2d)
440 ................................................................................................... 45
Ex parte Quirin, 317 U. S. 1, 63 S. Ct. 1, 87 L. Ed. 3 .......... 37, 38
Gaines v. Canada, 305 U. S. 337, 62 S. Ct. 1113, 86 L. Ed.
1660 ................................................................................................. 29
Grand Grove v. Garibaldi Grove, 105 Cal. 219....................... 6
Greenwood v. Building Trades Council, 71 Cal. App. 1 5 9 ... 44
Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct.
444, 80 L. Ed. 660........................................................................ 43
Grovey v. Townsend. 295 U. S. 45, 55 S. Ct. 622, 79 L, Ed.
1292 ........................ 23,25
Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926, 59
L. Ed. 1340 .................................................................................. 22
Hague v. C. I. O., 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed.
1423 ................................................................................................. 11,43
Pages
Hedgepeth v. Board of Education (N. J. Supreme Court,
Jan. 31, 1944) ............................................................................ 29
Hirabayashi v. United States, 320 U. S. 81, 63 S. Ct. 1938,
87 L. Ed. 1731.............................................................................. 39
Jones v. Opelika, 319 U. S. 103, 63 S. Ct. 8890, 87 L. Ed.
1290 ................................................................................................ 43
Journeymen Cordwainers Case (1809), 1 Yates’ Sel. Cases
114 .................................................................................................. 19
Mayer v. Journeymen Stonecutters’ Association (N. J.), 20
Atl. 492 ........................................................................................ 44
McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151, 35
S. Ct. 69, 59 L. Ed. 169............................................................. 29
McKay v. Retail Auto Salesmen’s Local Union, 16 Cal. (2d)
311 .................................................................................................. 46
Miller v. Ruehl, 2 N. Y. S. (2d) 394......................................... 44
Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543 28
Munn v. Illinois, 94 U. S. 113........................................................ 57
Murdock v. Pennsylvania, 319 IJ. S. 105, 63 S. Ct. 870, 87
L. Ed. 1292 .................................................................................. 43
National Federation of Railway Workers v. National
Mediation Board, 110 Fed. (2d) 529....................................... 57
National Labor Relations Board v. Fansteel Metallurgical
Corp., 306 U. S. 240, 59 S. Ct. 490, 83 L. Ed. 627.............. 66
National Labor Relations Board v. Griswold Manufactur
ing Co. (CCA 3), 106 F. (2d) 713........................................... 66
National Labor Relations Board v. Jones and Laughlin
Steel Corp., 301 U. S. 1, 57 S. Ct, 615, 81 L. Ed. 893.......... 65
Near v. Minnesota, 283 U. S. 697, 51 S. Ct. 625, 75 L. Ed.
1357 ............................................................................................. 43
Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed. 984 23
Nixon v. Herndon, 272 U. S. 536, 46 S. Ct. 613, 70 L. Ed.
1074 ............................................................................................. 23
Noble v. City of Palo Alto, 89 Cal. App. 47 ............................. 43
Norris v. Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed.
1074 ............................................................................................. 25
Otto v. Journeymen Tailors Union, 75 Cal. 308............................11,45
Park & Tilford Import Corp. v. International Brotherhood
of Teamsters, etc. (Cal. App.), 139 Pac. (2d) 963............ 71
Patterson v. Board of Education, 112 N. J. L. 99................ 29
People v. Tossetti, 107 Cal. App. 7 .............................................. 4
T a b l e o e A u t h o r i t i e s C i t e d i i i
Pages
Pierce v. Union District School Trustees, 47 N. J. L. 348.. 29
Pierre v. Louisiana, 306 U. S. 354, 59 S. Ct. 536, 83 L. Ed.
757 .................................................................................................. 26
Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 256.................. 28
Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158 28
Smith v. Texas, 311 U. S. 128, 64 S. Ct. 401, 88 L. Ed. 352.. 26
Schneider v. New Jersey, 308 U. S. 147, 60 S. Ct. 146, 84
L. Ed. 470 .....................................................................................11,43
Schneiderman v. United States, 320 U. S. 118......................... 30
Scott v. Donahue, 93 Cal. App. 128........................................... 6
Schwab v. Moving Picture Machine Operators Local (Ore.),
109 Pac. (2d) 600........................................................................ 55
Smith v. Allright, 321 U. S........ , ...... S. Ct........ , 88 L. Ed.
(Adv.) 1 .............................................................................23,29,56,57
Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664. . . 25
Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed.
1093 ................................................................................................ 43
West Virginia State Board of Education v. Barnette, 319
U. S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628............................... 43
Wilson v. Newspaper & Mail Deliverer’s Union (N. J.), 197
Atl. 720 ........................................................................................ 55
Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed.
220 ................................................................................................... 29
Von Arx v. San Francisco Gruetli Verein, 113 Cal. 377 . . . . 6
Codes and Statutes
Act May 31, 1870, 16 Stat. 140................................................... 22
Act February 28, 1871, 16 Stat. 433.......................................... 22
Act April 20, 1871, 17 Stat. 13................................................... 22
Act March 1, 1875, 18 Stat. 335.................................................... 22
California Civil Code, Sections 51, 52..................................... 43
California Constitution, Article VI, Section 4 ........................... 4
Civil Rights Act (Act April 9, 1866, 14 Stat. 2 7 )................... 22
National Labor Relations Act, 29 U. S. C. 151....................... 64
War Labor Disputes Act, 50 U. S. C., App. 1502................... 71
United States Constitution, Amendments I and X IV .......... 42
i v T a b l e o f A u t h o r i t i e s C i t e d
T a b l e o f A u t h o r i t i e s C i t e d v
Miscellaneous Pages
Charles and Mary Beard, “ The Rise of American Civiliza
tion” , Vol. I, pp. 45, 55, 58, 67, 78, 107-108, 651-656, 696,
707, 710-717; Vol. II, pp. 22, 36, 100-105 (The MacMillan
Co., 1930) .................................................................................... 18
California Constitution, Article I, Section 1 ........................... 55
Executive Order 9 0 1 7 ................................................................... 71
Executive Order No. 9346........................................................... 34
Bernard Smith, “ The Democratic Spirit” , p. 100 (Alfred
A. Knopf, 1941) .......................................................................... 19
Adolph Hitler, “ Mein Kampf” , p. 397 (Reynal & Hitch
cock, 1940) ..................................................................................41,42
The Law Governing Labor Disputes and Collective Bar
gaining, Vol. 2, p. 695................................................................ 66
Samuel Eliot Morison and Henry S. Commager, “ The
Growth of the American Republic” , Vol. 1, pp. 598,
622-653 (Oxford University Press, 1942)............................. 18
Herbert Northrop, “ Organized Labor and the Negro”
(Harper & Bros., 1944).............................................................. 33
E. S. Oakes, “ Organized Labor and Industrial Conflicts”
(Lawyers Coop. Publ. Co., 1927)........................................... 19
People’s World, January 16, 1944............................................. 31
People’s World, June 14, 1944................................................... 31
Max Radin, “ Anglo-American Legal History” , pp. 422-439
(West Publishing Co., 1936)................................................... 17
Max Radin, “ Law as Logic and Experience” , pp. 141-164
(Yale University Press, 1940)................................................. 17
Joseph Rosenfarb, “ The National Labor Policy and How
It Works” (Harper & Bros., 1940)....................................... 19
Mary Heaton Vorse, “ Labor’s New Millions” (Modern Age
Books, 1939) ................................................................................ 19
San Francisco Chronicle, October 13, 1943............................... 31
San Francisco Chronicle, April 5, 1944..................................... 31
S. F. No. 17,015
In the Supreme Court
OF THE
State of California
J oseph J ames, individually, and in a repre
sentative capacity for and on behalf of
1,000 other Negro workers similarly
situated,
Plaintiff and Respondent,
vs.
Marinship Corporation (a corporation),
L ocal U nion N o. 6 of I nternational
B rotherhood of B oilermakers, I ron
S hipbuilders and H elpers of A merica,
E d R ainbow , as Business Agent of said
Local 6, and E. Medley, as President of
said Local 6,
Defendants and Appellants.
BRIEF FOR RESPONDENT.
I .
QUESTIONS INVOLVED.
The questions involved in this appeal are these:
1. May a labor organization refuse membership
status equal to that afforded white workers to other-
2
wise qualified applicants solely because the latter are
Negroes? In other words, may a labor organization
provide several types of status therein, one a supe
rior status of actual membership to all persons other
than Negroes with various privileges attendant
thereto, and a second status confined to Negroes only
(and for the sole reason that they are Negroes) which
is not actual membership but a secondary, discrimi
natory, segregatory and unequal position and lacking
in the privileges accorded white workers?
2. May an employer, knowing of these discrimina
tory practices against Negroes by the labor organiza
tion, discharge Negroes (on demand of the union pos
sessing a closed shop agreement) who refuse to sub
ject themselves to the practices, where the employer
has a contract with the United States wherein the
employer agrees not to discriminate against workers
on account of race, color or origin?
3. Is not the public policy of the State of Cali
fornia, particularly in a period of national wartime
emergency, offended by the actions of a labor organi
zation and an employer in discriminating against
Negro workers in the matter of their membership in
that union, which is a condition precedent to their
employment by the employer, where that discrimina
tion is based on the sole fact that the workers are
Negroes?
4. Does not a Court of Equity have jurisdiction
to remedy the wrongs indicated by the preceding ques
tions ?
3
These are questions raised both by respondent’s
complaint in the Court below, and by appellants’
briefs in this Court. W e shall, by our discussion and
argument, endeavor to answer these questions in sup
port of the trial Court’s rulings.
n.
STATEMENT OF THE CASE.
This is an action for an injunction, both restrain
ing and mandatory. The plaintiff is Joseph James, a
Negro shipyard worker subject to the jurisdiction
of the Boilermakers Union and employed at Marin-
ship, who brings this action for himself and in a rep
resentative capacity for one thousand other Negro
workers at Marinship similarly situated.
The defendant employer is Marinship Corporation
(a corporation) which is engaged in the construction
of vessels for the United States Government pur
suant to contract with the Government at yards in
Marin County which are owned by the Government.
The yards are engaged in war work only and all ves
sels produced are used in the prosecution of the war.
The defendant labor organizations are the Inter
national Brotherhood of Boilermakers, Iron Ship
builders and Helpers of America (hereinafter re
ferred to as the International), J. A. Franklin,1 the
Charles MacGowan replaced J. A. Franklin as International
President at the Convention held in Kansas City, Mo., January
31-February 9, 1944. Mr. Franklin, who had been President for
more than twenty-five years, was retired on a life pension.
4
Internationa] President, Thomas Crowe, Interna
tional Representative, Local 6 of the International
(which has jurisdiction of all Boilermaker crafts in
San Francisco and Marin counties), Ed Rainbow and
E. Medley, Business Agent and President, respec
tively, of Local 6. (Throughout this brief the defend
ant unions and officers will be referred to as Boiler
makers.)
All parties defendant have admitted their appear
ance except the International. The injunction runs
against all parties defendant except the International.
All parties defendant, except the International, have
filed briefs on this appeal. Respondent contends that
the International appeared by the filing of an affidavit
by the International Secretary-Treasurer, William E.
Walter (T. p. 27) running to the merits of the con
troversy, and that this Court in the exercise of its
appellate and general supervisory powers over in
ferior Courts has the power to extend the injunction
against the International on the affirmance of the
trial Court’s orders.2 Such action would be helpful
in effecting a correction of the wrongs reached by the
injunction.
The injunction (T. pp. 52-56) enjoined the Boiler
makers from causing the discharge by Marinship of
Negro workers subject to the Boilermakers’ jurisdic
tion because the Negroes were not in good standing
(that is, had not paid initiation fees or dues) with
an auxiliary organization known as A-41. The injune-
2Constitution of California, Article VI, Section 4. Cf. People
v. Tossetti, 107 Cal. App. 7.
5
tion directed the Boilermakers to admit Negroes to
membership upon terms and conditions and with privi
leges equal to that accorded white workers by the
Boilermakers. The Boilermakers were enjoined from
enforcing the By-Laws Governing Auxiliary Lodges.
(Exhibit “B ”, T. p. 63, hereinafter called “Red
Book”.) Marinship was enjoined from discharging
or refusing to employ Negroes because they were
not in good standing or lacked job clearances from
the International, Local 6, or A-41. However, the
injunction provided that when the Boilermakers indi
cated their willingness to and did accept plaintiff and
other Negroes into membership upon terms equal with
white workers, then the Negroes should be required
to have job clearances from the Boilermakers. (T. p.
55.)
The complaint (T. pp. 1-23) alleged that the Ne
groes are skilled craftsmen at the Boilermakers’
trade who had been employed at Marinship for more
than a year on the part of most workers; that all of
them are subject to the Boilermakers’ jurisdiction;
that they are ready, able and willing (and are at
present and will continue so) to join the Boiler
makers but upon conditions of equality with white
workers; that the Boilermakers are trying to force
the Negroes, under penalty of losing their jobs, to
join an auxiliary A-41 which is not in fact a labor
organization but is a racket and a scheme and device
whereby the Boilermakers extract tribute in the form
of “dues” and “initiation” fees from Negroes without
giving them membership rights or other privileges in
6
the union, although white workers who pay initiation
fees and dues have rights and privileges in the union.
The complaint alleges the existence of a closed shop
agreement between the Boilermakers and Marinship
(T. p. 3) and that the employer threatens to dis
charge the Negroes unless they join the auxiliary and
pay it dues and initiation fees.
The complaint alleges that Marinship has a con
tract (T. p. 4) with the United States whereby the
company agrees not to discriminate in the employ
ment of workers on account of race, color, creed, or
national origin, but that the company is threatening
to discharge the Negroes in violation of the contract.
The Negroes assert that the actions of the defend
ants are contrary to the public policy of the State
of California, particularly in wartime, contrary to
natural justice and the law of the land.3
The discriminatory practices perpetrated by the
Boilermakers against Negro workers through the de
vice of the auxiliaries, and joined in by the employer
which knows of these practices but nonetheless
threatens to discharge the workers in spite of its con
tract with the United States, are alleged in the com
plaint (T. pp. 7-8), admitted by the demurrers (of
3Appellant Boilermakers do not like these words. They are
some kind of undesirable “ glow” or “ polar” words. Perhaps
what the Boilermakers do not like is the concept. But whether
they like it or not, the principle that a labor organization must
act." according to natural justice, the law of the land, and due
process of law finds expression in many California cases: Otto
v. Journeymen Tailors Union, 75 Cal. 308; Grand Grove v. Gari
baldi Grove, 105 Cal. 219; Von Arx v. San Francisco Gruetli
Verein, 113 Cal. 377; Scott v. Donahue, 93 Cal. App. 128.
7
Marinship, T. p. 26a; of Boilermakers, T. p. 50), and
exist as follows. (An analysis of these discriminations
is found in Appendix “A ”.)
1. Local 6 supervises, manages and controls all of
affairs and business of A-41.
2. A-41 has no voice, authority or autonomy with
respect to the management of its own affairs or in
dealing with the employers of its members.
3. A-41 is not allowed voice or vote in the affairs
of its supervising lodge Local 6.
4. A-41 is a union in name only. It performs no
services for its members and grants them no benefits.
It is merely an agency for exacting financial tribute
from Negro workers. It is taxation without represen
tation.
It is clear from these discriminations that the
Negro auxiliary has no independent existence. It is
subservient in every way to the supervising white
lodge. The Negro auxiliary can take no action with
out approval of the white lodge. The Negro lodge has
and can have no independent dealings with employers.
The white lodge makes all the conditions and bargains
for the Negroes, but the latter have no voice or vote
in that bargaining.
Under such conditions, it is obvious that the Negro
auxiliary is a secondary, disenfranchised unequal or
ganization, not in fact a labor union, but in realty a
racket and a scheme and device by which the Boiler
makers collect monies from Negro workers ostensibly
8
for membership rights but without according such
rights to Negroes.
The Boilermakers assert that the Negroes obtain
working and wage conditions equal to white workers.
That is beside the point. The Boilermakers claim
they have the right under their closed shop contract
to compel Negroes to pay dues and initiation fees as
a condition precedent to the latter working. If the
Negroes must pay such monies, then they should have
the rights that naturally should go with payment: Full
membership that carries with it the right to partici
pate in collective bargaining. The secondary status
that flows from attachment to an auxiliary allows
absolutely no collective bargaining rights. In other
words, the Boilermakers pronounce this fiat: The
color of a m a n’s skin determines who shall bargain
for all men of whatever color!
This is not the case where a majority of workers
has won an election and designated a union as their
agent which will bargain for all. The argument
which the Boilermakers make (Opening Brief, pp.
59-71) is all directed to that point. That proposi
tion is settled law, but is not the matter with which
we are here concerned. There was no election here
to designate a representative. The Boilermakers bar
gained from the outset for all workers subject to its
jurisdiction in making the Master Agreement. (Ex
hibit “C”, T. p. 64.) Negroes had no voice or vote
in that agreement and no chance to participate. They
argue that if they are to be subject to the terms of
9
the agreement, or other agreements or amendments
to be negotiated in the future, then they should have
some voice and vote in the matter. Payment of dues
contemplates such a right. How, then, can the Boiler
makers justify its denial? In the examples given by
the Boilermakers, at least the minority workers who
voted against the union had the opportunity to join
and participate in the bargaining through the union.
Here, the Negroes are denied that opportunity. It is
clear that the Boilermakers beg the fundamental ques
tion involved in this case when they resort to this
kind of argument.
There is another fundamental and far-reaching
proposition involved in the four points of discrimina
tion mentioned. The auxiliary can be destroyed and
dissolved at will by the International officers, or
Executive Board, without the consent and without
consulting the auxiliary or its members! By this ac
tion, the International can wipe out all the economic
rights and jobs of Negroes.
That such a situation exists will be seen by ref
erence to the Auxiliary By-Laws (Exhibit “B ”, T.
p. 63; Red Book, pp. 3-4) :
“Article I. Section 2. All Auxiliary lodges
shall be in affiliation with the International
Brotherhood and shall not be dissolved except by
and with the authority of the International
Brotherhood.
Section 3. The International Brotherhood and
Executive Council shall have full jurisdiction
10
and authority over Auxiliary Lodges and is the
highest tribunal of sueh Lodges.
Section 4. The International President shall have
direction and supervision of all Auxiliary Lodges
with power to suspend their Officers, individual
member or members, and any and all Lodges,
when in his judgment, it is for the best interest
of the Lodge or the International Brotherhood.
* * *” (Our emphasis.)
The International possesses no such power with re
gard to white lodges. Their charters can be revoked
only for a violation of the International Constitu
tion, and then only by due process of law. In other
words, a white lodge, once chartered, keeps its char
ter permanently. A n auxilary charter can be sus
pended whenever the International desires to take
such action.
The Constitution and By-Laws of the International
provides (Exhibit “A ”, T. p. 62; Blue Book, p. 19):
“Article IV. Section 2. The International Presi
dent in conjunction with the Executive Council
shall have the power to revoke the Charter of
a Subordinate Lodge, which shall have been
proven guilty of violation of this Constitution.
* *
There is no provision in the International Consti
tution for the suspension of a charter of a white
lodge at the will of the International.
Thus, in a basic and fundamental matter, the dis
crimination screams out. The Negro auxiliary can
11
be destroyed at will so that the jobs of Negroes can
be destroyed with it. In this way, the economic secu
rity of the Negro boilermaker is held completely in
the control of the International, which is free to give
or deny jobs to Negroes. In this regard, the power
of the International is like that of the censor which
the Supreme Court has decried in a number of his
toric civil liberty cases. The power to license is the
power to destroy. That power is contrary to concepts
of due process held fundamental to the United States
Constitution.4 Just as the states or federal govern
ment may not impose previous restraints on liberty
of expression, so should not this private organization,
the Boilermakers, be free to destroy the economic
security of Negroes by a system which allows them to
suspend Negro auxiliaries at will. The device of
auxiliaries which the Boilermakers has developed is
an obvious means to give effectiveness to the old adage
that the Negro is the last person to be hired, and the
first to be fired. By this auxiliary scheme, this vicious
economic practice is made easily possible by the Boiler
makers. And we assert that such is the basic intention
of the auxiliary system. The Boilermakers contem
plate a period when jobs will not be so plentiful as at
the present. At such a time, they plan to make jobs
available only to white workers. The Boilermakers
want to keep the Negroes where the union can easily
watch and single them out, and replace them at will. *
*Hague v. C. I. 0 ., 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed.
1423; Schneider v. New Jersey, 308 U. S. 147, 60 S. Ct. 146, 84
L Ed. 115; Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84
h. Ed. 1093.
12
The Boilermakers in their brief (pp. 64-67) com
plain that the Negroes have a history as strikebreakers.
It is just because of the actions of the Boilermakers
that we have described that the Negroes have such a
history. They do not want to be strikebreakers. But
how can they be otherwise when they are denied work
opportunities equal with white workers? The problem
posed by the Boilermakers is readily answered. Let
the Negroes be fully integrated into labor unions and
industry and their role as strikebreakers will be a
thing of the past.
There is still another factor indicating the second
ary, unequal role the Negro has in the Boilermaker
set-up. Nowhere in the International Constitution or
Auxiliary By-Laws is the Negro referred to as a
member of the International. In other words, the
Negro is not a member of the union! He is merely
attached to the auxiliary. Thus it is clear that his
status is not that of membership with the privileges
attached thereto, but is a tentative, uncertain status
which is given and taken away at the pleasure of the
International union. And when the International
takes away the Negro’s rights, it makes no provisions
for the money paid in to the union or insurance bought
by the Negro to go back to the Negro. No, those
monies are forfeited to the International and the in
surance rights are lapsed. Those are the foreseeable
results from the laws governing the Boilermakers.
Then there are other discriminations that wre have
set forth in the complaint.
13
5. A -41 neither has nor is allowed a business agent,
but the business agent of Local 6 is supposed to act
for Negroes, who refuses to act for them.
6. A-41 neither has nor is allowed a grievance com
mittee to redress grievances with the employer, but
must act through the grievance committee of Local 6.
7. Negroes may be dispatched to work only through
the medium of Local 6. The auxiliary has no right to
dispatch workers to jobs.
8. The Negroes cannot obtain a job classification
from helper to journeyman without the approval of
Local 6.
Thus it appears that all the machinery common to a
union which makes effective the rights of membership
are denied to Negroes. They have no business agent
to represent them. The white business agent is not
elected by nor responsible to them. They have no
means of recalling him if he fails to handle their
grievances. They are mere supplicants before him. He
can deny his services to them at will.
The Negroes have no grievance committee to act for
them other than the grievance committee of the white
lodge which is not elected by them and not responsible
to them. The grievance committee is free to refuse to
act for Negroes.
The Negro cannot improve his job status unless the
white lodge agrees. While that may happen frequently
now, when work slackens off, the white worker will be
advanced and the Negro held back.
14
Only the white local can send workers to a job. The
employer contacts the white local for men, and the
white local send all workers, including Negroes to jobs.
Here again, all workers may be sent out now. But the
system allows the white local to send white workers
and deny employment to Negroes.
In summation, every device that may be created to
subject the Negro to a dependent and lesser economic
status is in the Boilermakers’ book. The Negro is at
the mercy of the Boilermakers. His economic liveli
hood is in the hands of men who by their discrimina
tory practices have proved that not only are they not
interested in the economic welfare of the Negro, but
they will at the first opportunity destroy the economic
security of the Negro boilermaker!
There are several other practices of which the
Negroes complain.
9. The Negroes have lesser insurance rights than
white workers.
The excuse is given that the Negro is a poorer risk.
That is a very bad excuse for a union which demands
equal wages for equal work. H o w can they deny equal
insurance protection to Negroes who pay equal dues?
(Note: The January convention of the Boilermakers,
under nationwide pressure, made some overtures to
correct its abuses toward Negroes. One of these at
tempted corrections was in regard to insurance. See
Appendix “B ” for the proposed changes. It may be
safely said that the proposed changes mean absolutely
nothing with regard to removing the inequalities
15
against Negroes which is the subject of this case. All
that the actions of the convention indicate is that the
Boilermakers were forced to make some concessions
in an attempt to save face publicly. The effort has
fallen flat.)
A final discrimination is this:
10. The Negroes are segregated into the auxiliary
because they are Negroes.
The Boilermakers argue that segregation is not dis
crimination. They cite cases dealing with pullman
cars, social and golf clubs, and restrictive land cove
nants as supporting their position. W e recognize the
existence of such cases, and we disagree with them. W e
add, however, that segregation on the part of a union
is quite a different thing from the segregations men
tioned.
The placing of Negroes in auxiliaries is like putting
Jews in Ghettos. It is the vilest, most barbarian form
of discrimination and is based on nothing but blind
prejudice and hatred. That men should harbor such
thoughts in a day and age when we are fighting a
great war to liberate the world of such practices is a
disgraceful and disturbing thing to contemplate.
Segregation in a union is in effect discrimination,
because its purpose is to discriminate against Negroes
in an economic way. Such segregation is not in the
slightest degree comparable to social discrimination
unjustifiable as that may be, and there is an obvious
distinction between the right to live and the desire
to swat a golf ball.
16
W e have listed the discriminatory practices of the
Boilermakers. W e turn now to the employer, Marin-
ship. It argues that what the union does is none of its
concern, that its only obligation is to respond to the
union demand to discharge workers not in good stand
ing. But it is aware of the discriminatory practices of
the union, and participates in them by discharging
Negroes who refuse to be discriminated against. To
that extent, the company is as guilty as the union,
and by such actions it violates its contract with the
United States. W e will answer the company’s “argu
ments” later in this brief.
This case was argued and briefed at length before
the trial judge, the Honorable Edward I. Butler.
After due consideration, he issued the injunction,
agreeing that the contract as applied to Negroes was
void, and that the discriminatory practices herein
attacked by plaintiff were contrary to the public policy
of the State of California. From a review of these
practices, it is difficult to imagine how any contrary
result could have been reached. Even were there no
legal authority in the sense of decided cases, both
justice and common sense would dictate the result
reached by Judge Butler. W e believe that such con
siderations will be equally convincing to this Court.
17
I I I .
ARGUMENT.
I .
PRELIMINARY CONSIDERATIONS.
At the outset let us say that we are not levelling
any attack whatsoever against legitimate trade unions
or their activities. The practices of which we com
plain in this case are definitely those of a minority
of unions. Most unions in America admit Negroes
and all other workers to membership on terms of
equality for all, Negro and white. Such action is
harmonious with the best principles of American
democracy. The activities of the Boilermakers in this
case are definitely contrary not only to the interests of
America, but also to the philosophy and practices of
the American labor movement as a whole. Therefore,
the Boilermakers are creating a straw man when they
say this case is an attack against labor. Just the con
trary is true.
There is very little legal authority to support the
relief sought by respondent. Likewise, there is very
little to support the position of appellants. The de
cided cases are none of them squarely in point with
the problems raised here. That is because this is a
novel case, a case of first impression. And because it
presents problems which heretofore have not been
presented to the courts for decision, the argument
necessarily must be based on principles of logic, jus
tice, and analogy.5
5Max Radin, “ Law as Logic and Experience”, pp. 141-164.
(Yale University Press, 1940.)
18
This case calls for decision in the same way that
principles of equity were first established by the
Courts of Chancery.0 W e appeal here to the con
science of the Court. Our courts have never refused
to decide a case demanding decision because there was
either absence or dearth of precedent. There must
always be a first decision when new problems are pre
sented to the courts. W e have here such a case.
The Negro problem in America is as old as our
history.7 So are the discriminations practiced against
him. But so also has been the struggle for equal treat
ment and fair dealing toward the Negro. From slavery
to emancipation, a host of liberty loving great Ameri
cans fought unreservedly for the rights of Negroes.
They fought not for the Negro alone, but because the
rights of all Americans were no safer or stronger than
those of its weakest few.
Thomas Jefferson wrote in the year 1814:
“Mine (sentiments) on the subject of slavery of
Negroes have long since been in possession of the
public, and time has only served to give them
stronger root. The love of justice and the love of
country plead equally the cause of these people,
and it is a moral reproach to us that they should
have pleaded it so long in vain, and should have
produced not a single effort, nay, I fear not much
«Max Radin, “ Anglo-American Legal History” , pp. 422-439.
(West Publishing Co., 1936.)
7Charles and Mary Beard, “ The Rise of American Civiliza
tion”, Vol. I, pp. 45, 55, 58, 67, 78, 107-108, 651-656, 696, 707,
710-717; Vol. II, pp. 22, 36, 100-105. (The MacMillan Co., 1930.)
Samuel Eliot Morison and Henry S. Commager, “ The Growth of
the American Republic”, Vol. I, pp. 598, 622-653. (Oxford Uni
versity Press, 1942.)
19
serious willingness to relieve them and ourselves
from our present condition of moral and political
reprobation. * * * The hour of emancipation is
advancing, in the march of time.”8 *
William Cullen Bryant defended labor unions and
fought for abolition. Bryant protested the imprison
ment of striking workers. Wrote he:
‘‘They had committed the crime of unanimously
declining to go to work at the wages offered to
them by their masters. They had said to one
another, ‘Let us come out from the meanness and
misery of our caste. Let us begin to do what every
order more privileged and more honoured is doing
every day. By the means which we believe to be
best let us raise ourselves and our families above
the humbleness of our condition.’
Yes, it is a far cry from the time when a union
was an unlawful conspiracy10 to the day when labor
unions have been given the sanction of acts of Con
gress and recognized as an integral and essential part
of American life.11 Labor has grown in stature and
influence. But appellant Boilermakers forget that
labor has always fought the battle of the under
privileged and the disenfranchised. Their discrimina-
8Letter to Edward Coles, quoted in Bernard Smith, “ The
Democratic Spirit”, p. 100. (Alfred A. Knopf, 1941.)
°From “ The Right of Workmen to Strike”, quoted in Smith,
op. tit., p. 209.
10Journeymen Cordwainers Case (1809), 1 Yates’ Sel. Cases
114; E. S. Oakes, “ Organized Labor and Industrial Conflicts” .
(Lawyers Coop. Publ. Co., 1927.)
11 Joseph Rosenfarb, “ The National Labor Policy and How It
Works”, (Harper & Bros., 1940); Mary Heaton Vorse, “ Labor’s
New Millions”. (Modern Age Books, 1939.)
20
tion against Negroes is no different from the oppres
sions once visited against their members in a day not
too far past. While the Boilermakers argue that the
right of labor to self organization is generally recog
nized in this country (a proposition with which we
certainly agree) they can hardly use that fact as
authority for their discriminatory practices. In fact,
quite the contrary is true. For just as men like Wil
liam Cullen Bryant took up their pen for labor, so
did they join in the fight on behalf of the Negroes.12
For when you fight for the rights of one persecuted
minority (and labor was just that at one time), so
also must you fight for every other persecuted minor
ity. The Boilermakers have too soon forgotten the
history of both labor and America.
There was William Lloyd Garrison who for thirty-
five years published “The Liberator” and fought the
battle of emancipation with an unshakable conviction.
“I determined at every hazard, to lift up the
standard of emancipation in the eyes of the na
tion, within sight of Bunker Hill, and in the birth
place of liberty. That standard is now unfurled;
and long may it float, unhurt by the spoliations
of time or the missiles of a desperate foe; yea, till
every chain be broken, and every bondman set
free! Let Southern oppressors tremble; let their
secret abettors tremble; let their Northern apolo
gists tremble; let all the enemies of the persecuted
blacks tremble.”13
12Smith, op. cit., p. 208.
13Smith, op. cit., p. 252.
21
There were other human minded Americans who
joined this great struggle for the rights of Negroes:
Henry David Thoreau, Frederick Douglass, Wendell
Phillips, Captain John Brown, Walt Whitman, Har
riet Beecher Stowe, and Abraham Lincoln.
Lincoln spoke thus at Edwardsville, Illinois, in the
year 1858:
“When * * * you have succeeded in dehumanizing
the Negro; when you have put him down and
made it impossible for him to be but as the beasts
of the field; when you have extinguished his soul
in this world and placed him where the ray of
hope is blown out as in the darkness of the
damned, are you quite sure that the demon you
have roused will not turn and rend you? What
constitutes the bulwark of our own liberty and
independence ? It is not our frowning battlements,
our bristling sea coasts, our army and our navy.
These are not our reliance against tyramiy. All of
those may be turned against us without making
us weaker for the struggle. Our reliance is in the
love of liberty which God has planted in us. Our
defence is in the spirit which prized liberty as the
heritage of all men, in all lands everywhere.
Destroy this spirit and you have planted the seeds
of despotism at your own doors. Familiarize your
selves with the chains of bondage and you prepare
your own limbs to war them. Accustomed to
trample on the rights of others, you have lost the
genius of your own independence and become the
fit subjects of the first cunning tyrant who rises
among you.”14
14Smith, op. tit., p. 414.
22
After emancipation, the struggle was long and bitter
to effectuate the liberty of the newly freed slaves. The
Thirteenth Amendment had abolished slavery and in
voluntary servitude. The Fourteenth Amendment gave
the Negroes citizenship, and provided guarantees of
their basic civil rights against arbitrary discrimina
tion. That amendment was rendered necessary to re
verse Chief Justice Taney’s doctrine in the B r e d S c o t t
case. ( B r e d S c o t t v. S a n d fo r d , 19 Howard (U. S.)
393, 15 L. Ed. 691.) The Fifteenth Amendment for
bade the denial of the Negro’s right to vote. To en
force these amendments, the Congress adopted the
Civil Rights Acts. (Act April 9, 1866, 14 Stat. 27; Act
May 31, 1870, 16 Stat. 140; Act February 28, 1871, 16
Stat. 433; Act April 20, 1871, 17 Stat. 13; Act March
1, 1875, 18 Stat. 335.)
The struggle did not end there. The Southern States
cast about for means to disenfranchise the Negro. The
“grandfather clause” restriction was effective until
voided by the Supreme Court in 1915 in the case of
G uin n v. U n i te d S ta te s , 238 U. S. 347, 35 S. Ct. 926,
59 L. Ed. 1340. This scheme has since been discarded.
A second method of disenfranchising the Negro was
by educational requirements which were always en
forced in a discriminatory maimer against the Negro.
The poll tax was another means, but this now faces
eradication by the act pending in Congress.
Another device was excluding Negroes from Demo
cratic primaries (in the South, nomination by that
party is tantamount to election). This procedure was
voided by the Supreme Court as a denial of equal
23
protection in Nixon v. Herndon, 272 U. S. 536, 46
S. Ct. 613, 70 L. Ed. 1074. Texas, where this case
arose, passed a statute authorizing the executive com
mittee of political parties to determine who could vote
in its primaries. The Executive Committee of the
Democratic Party ruled that Negroes should not vote
in its primaries. This practice was held a denial of
equal protection in Nixon v. Condon, 286 U. S. 73, 52
S. Ct. 484, 76 L. Ed. 984. The next device was to repeal
all state legislation, and the Democratic Party was
thus left iminstructed and proceeded to bar Negroes
from its primaries. This was held not state action, but
private action by the Supreme Court, and therefore
not subject to Court interference in the case of Grove y
v. Townsend„ 295 U. S. 45, 55 S. Ct. 622, 79 L. Ed.
1292.
But this latter doctrine and case have but recently
been overturned in the historic case of Smith v. All-
right, 321 U. S... ,.. S. Ct.... , 88 L. Ed. (Adv.) 1
(Texas Democratic primary case), wherein the Su
preme Court said this:
“It may now be taken as a postulate that the
right to vote in such a primary for the nomina
tion of candidates without discrimination by the
State, like the right to vote in a general election,
is a right secured by the Constitution. United
States v. Classic, 313 U. S. at 314; Myers v. An
derson, 238 U. S. 368; Ex parte Yarborough, 110
U. S. 651, 663 et seq. By the terms of the Fif
teenth Amendment that right may not be abridged
by any state on account of race. Under our Con
stitution, the great privilege of choosing his rulers
24
may not be denied a man by the State because of
his color. * * *
The United States is a constitutional democ
racy. Its organic law grants to all citizens a
right to participate in the choice of elected offi
cials without restriction by any state because of
race. This grant to the people of the opportunity
for choice is not to be nullified by a state through
casting its electoral process in a form which per
mits a private organization to practice racial dis
crimination in the election. Constitutional rights
would be of little value if they could be thus indi
rectly denied. Lane v. Wilson, 307 U. S. 268, 275.
The privilege of membership in a party may
be, as the Court said in Grovey v. Townsend, 295
U. S. 45, 53, no concern of a state. But when, as
here, that privilege is also the essential qualifica
tion for voting in a primary to select nominees
for a general election, the state makes the action
of the party the action of the state. In reaching
this conclusion we are not unmindful of the de
sirability of continuity of decision in constitu
tional questions. However, when convinced of
former error, this Court has never felt constrained
to follow precedent. In constitutional questions,
where correction depends upon amendment and
not upon legislative action this Court throughout
its history has freely exercised its power to re
examine the basis of its constitutional decisions.
This has long been accepted practice, and this
practice has continued to this day. This is par
ticularly true when the decision believed errone
ous is the application of a constitutional principle
rather than an interpretation of the Constitution
to extract the principle itself. Here we are apply-
25
ing, contrary to the recent decision in Grovey v.
Townsend, the well established principle of the
Fifteenth Amendment, forbidding the abridge
ment by a state of a citizen’s right to vote. Grovey
v. Townsend is o v e r r u le d (Our emphasis.)
It is apparent from this line of decisions that the
Supreme Court sought to give reality to the Thir
teenth, Fourteenth and Fifteenth Amendments despite
the attempts of the Southern States to circumvent
them. The actions of the Southern States in denying
the franchise to Negroes was and is based on the same
kind of unreasoned prejudice that motivates the Boil
ermakers here. The actions of the Boilermakers are
as equally repugnant to public policy as were the
various state efforts to disenfranchise Negroes. (Note:
The reference by the Boilermakers to Grovey v.
Townsend, supra, Boilermakers’ Opening Brief, p. 57,
is hardly appropriate or convincing.)
The Supreme Court has protected other basic civil
rights of Negroes. Thus, a municipality may not re
strict the areas in which Negroes can live. (Buchanan
v. Warley, 245 U. S. 60, 38 S. Ct. 16, 62 L. Ed. 149.)
In the administration of criminal law, the Negro’s
rights have been protected. Thus, trial of a Negro by a
jury from which Negroes have been excluded because
they are Negroes is a violation of the Fourteenth
Amendment. Strauder v. West Viryinia, 100 U. S.
303, 25 L. Ed. 664. Trial of a Negro by a jury where
Negroes have been systematically excluded from the
panel is a violation of due process of law. Norris v.
Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed. 1074;
26
P ie r r e v . L ou isian a , 306 U. S. 354, 59 S. Ct. 536, 83
L. Ed. 757; S m ith v. T exas, 311 U. S. 128, 64 S. Ct.
401, 88 L. Ed. 352.
Protection of all persons accused of crime against
extorted confessions has been developed in cases pri
marily where Negroes were subjected to southern
brutality. B ro w n v. M iss is s ip p i, 297 U. S. 278, 56 S.
Ct. 461, 80 L. Ed. 682; C h am bers v . F lo r id a , 309 U. S.
227, 60 S. Ct. 472, 84 L. Ed. 716. In the latter case,
speaking for the Court, Mr. Justice Black wrote these
eloquent words which are as applicable to private ac
tion (such as that of the Boilermakers) as they are to
the State action against which they were directed:
309 U. S. at p. 235:
“The scope and operation of the Fourteenth
Amendment have been fruitful sources of contro
versy in our constitutional history. However, in
view of its historical setting and the wrongs which
called it into being the due process provision of
the Fourteenth Amendment— just as that in the
Fifth— has led few to doubt that it was intended
to guarantee procedural standards adequate and
appropriate, then and thereafter, to protect, at
all times, people charged with or suspected of
crime by those holding positions of power and
authority. Tyrannical governments had immemo-
rially utilized dictatorial criminal procedure and
punishment to make scape goats of the weak, or
of helpless political, religious, or racial minorities
and those who differed, who would not conform
and who resisted tyranny. The instruments of
such governments were in the main two. Conduct,
innocent when engaged in, was subsequently made
27
by fiat criminally punishable without legislation.
And a liberty loving people won the principle that
criminal punishments could not be inflicted save
for that which proper legislative action had al
ready by ‘the law of the land’ forbidden when
done. But even more was needed. From the popu
lar hatred and abhorrence of illegal confinement,
torture and extortion of confessions of violations
of the ‘law of the land’ evolved the fundamental
idea that no man’s life, liberty or property be
forfeited as criminal punishment for violation of
that law until there had been a charge fairly made
and fairly tried in a public tribunal free of preju
dice, passion, excitement and tyrannical power.
Thus, as assurance against ancient evils, our
country in order to preserve ‘the blessings of
liberty,’ wrote into its basic law the requirements
among others, that the forfeiture of the lives,
liberty or property of people accused of crime
can only follow if procedural safeguards of due
process have been obeyed.”
309 U. S. at p. 240:
“W e are not impressed by the argument that law
enforcement methods such as those under review
are necessary to uphold our laws. The Constitu
tion proscribes such lawless means irrespective of
the end. And this argument flouts the basic prin
ciple that all people must stand on an equality
before the bar of justice in every American court.
Today, as in ages past, we are not without tragic
proof that the exalted power of some governments
to punish manufactured crime dictatorially is the
handmaid of tyranny. Under our constitutional
system, courts stand against any winds that blow
as havens of refuge for those who might otherwise
28
suffer because they are helpless, weak, outnum
bered, or because they are non-conforming victims
of prejudice and public excitement. Due process
of law, preserved for all by our Constitution, com
mands that no such practice as that disclosed by
this record shall send any accused to his death.
No higher duty, no more solemn responsibility,
rests upon this Court, than that of translating
into living law and maintaining this constitutional
shield deliberately planned and inscribed for the
benefit of every human being subject to our Con
stitution— of whatever race, creed or persuasion.”
So, also, have Negroes (and all persons through
them) been protected from a trial dominated by mob
violence. M oore v. D e m p se y , 261 U. S. 86, 43 S. Ct.
265, 67 L. Ed. 543. The same is true of the right to
counsel. P o w e ll v . A la b a m a , 287 U. S. 45, 53 S. Ct. 55,
77 L. Ed. 158.
In all of these cases principles of due process of
law and equal protection of the laws have protected
the Negro against unlawful state action. W e believe
that the analogy is sound that a labor organization,
the Boilermakers, camiot deny the Negroes equal treat
ment and fair dealing without violating the public
policy of California.
On the matter of segregation, while P le s s y v . F erg u
son, 163 U. S. 537, 41 L. Ed. 256 (Boilermakers’ Brief,
p. 52), holds that if facilities are equal that segrega
tion is lawful, there are later cases showing a strict
application of the rule. (We question whether a simi
lar case to P le s s y v . F erg u so n , supra, would meet with
29
the same answer in the Supreme Court today. Cf.
Smith v. Allright, supra.) Thus, in Games v. Canada,
305 U. S. 337, 62 S. Ct. 1113, 86 L. Ed. 1660, it was
held that a Negro was entitled to admittance to the
state law school of Missouri, which theretofore had
denied admission to Negroes but paid their tuition in
the law schools of neighboring states which admitted
Negroes. See also McCabe v. Atchison, T. & S. F. Ry.
Co., 235 U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169, holding
that a state may not allow railroads to haul sleeping,
dining, and chair cars for the exclusive use of white
persons without providing them for the use of
Negroes.
And compare Yick Wo v. Hopkins, 118 U. S. 356,
6 S. Ct. 1064, 30 L. Ed. 220, prohibiting unequal en
forcement of the law against Chinese.
There are state court decisions which are also ap
plicable. Thus, restriction of Negro children to certain
schools and exclusion of them from other schools solely
on account of color is unlawful. Pierce v. Union Dis
trict School Trustees, 47 N. J. L. 348; Patterson v.
Board of Education, 112 N. J. L. 99; Hedgepeth v.
Board of Education (N. J. Supreme Court, Jan. 31,
1944, Appendix “C ”)-
The progress of the Negro people from slavery to
emancipation and from emancipation to a recognition
that their rights of citizenship should be made fully
effective is indicative of the attitude and activities
of real American democracy toward the Negro people.
The Negro may not always obtain the rights which are
30
in theory his. Nonetheless, his legal rights have been
recognized and the struggle continues without abate
ment to implement those rights and make them real
in every sense. Just as the rights of the Negro people
have developed during the history of our country and
been recognized by the courts of the land, so it seems
to us must the rights of Negroes to full and equal
participation in the trade union movement of America
be recognized and made effective. Trade imions are
a recognized part of American life just as much as
any other institutions such as the home, the church
and the school. W e cannot give the Negro the right
of citizenship incident to being an American and deny
him that same thing in the labor movement. In a
word, the time lias come when the Negro must be given
full trade union citizenship. Cf. S ch n e id erm a n v.
U n ite d S ta te s , 320 U. S. 118.
Indicative of the growing recognition of the propo
sition that the Negroes must be given equal treatment
in every respect and full trade union citizenship, are
other significant occurrences.
Thus, William Green, President of the American
Federation of Labor, told the National Negro Con
gress that he had been informed “that substantial
progress is being made toward the objective of extend
ing to Negro workers in the West Coast shipyards
full rights and privileges in Boilermakers’ union
locals”. Green said that two A. F. of L. members of
the President’s Committee on Fair Employment Prac
tices (FEPC) “are devoting much time to the efforts
31
of the Committee to arrive at a satisfactory and
equitable solution of this problem”. Mr. Green sent
this letter to the Congress which had made frequent
appeals to the Boilermakers to end its Jim-Crow
auxiliary system.10
The 1943 convention of the American Federation of
Labor adopted a committee report deploring race dis
criminations in unions. Mr. Green said:
“If I had m y way every organization in the A. F.
of L. would admit Negroes to membership on the
same basis of equality as whites.”10
The Welders & Burners Local 681 (Oakland, Cal.)
of the Boilermakers in January of 1944 adopted a
resolution calling for an abolition by the International
of the auxiliary set-up and the integration of the
Negroes into full membership in the union.15 * 17
The association of Catholic Trade Unionists of San
Francisco, all of whose officers are members of A. F.
of L. unions, adopted this resolution on March 16,
1944:18
“ W hereas, San Francisco Locals 6 and 9 of the
International Brotherhood of Boilermakers, Iron
Ship Builders, Welders and Helpers of America,
compel Negro applicants for membership to join
an auxiliary union, and
W hereas th is auxiliary is founded solely on a
racial basis, and
15People’s World, June 14, 1944.
i«San Francisco Chronicle, October 13, 1943.
17People’s World, January 16, 1944.
18San Francisco Chronicle, April 5, 1944.
32
W hereas an enlightened attitude requires that
the labor m ovement be above such reactionary
racial doctrines, and
W hereas such discrimination is the direct an
tithesis of the demoncratic ideals for which this
Nation is now at war,
T herefore B e I t R esolved that the San Fran
cisco Chapter of the Association of Catholic Trade
Unionists petition the International officers of
Locals 6 & 9 to abolish their established practice
of auxiliary unionism for the progress of the
labor movement and the welfare of the Nation,
and
B e I t F urther R esolved that copies of this reso
lution be forwarded to Locals 6 & 9, to Mr. Wil
liam Green, President of the American Federation
of Labor and to the Press.”
Phillip Murray, President of the Congress of In
dustrial Organizations, said to that body at its Phila
delphia convention held during November 1-5, 1943,
concerning the F. E. P. C.:
“Two years of practical experience in dealing
with problems of discrimination in employment
on grounds of race, creed, color and national
origin by the President’s Committee on Fair
Employment Practices prove that these un
democratic and social destructive practices can
be controlled if approached with vigor and
honesty. The work of the original F.E.P.C., both
as part of the President’s office and thereafter
under the W a r Manpower Commission, has al
ready produced substantial improvement * * *
33
From the time of the establishment of the first
committee, the C.I.O. has given full support to
this work. It was instrumental in obtaining the
issuance of Executive Order 8802, it pressed for
vigorous and constant enforcement without fear
or favor, it has urged full and prompt investiga
tions and hearings in all situations where dis
criminatory practices have taken place.”
That most unions do not discriminate against or
segregate Negroes is developed by Herbert Northrup
in his work on “Organized Labor and the Negro”
(Harper & Bros., 1944).
Leading Americans in all walks of life have de
plored the discriminations against the Negroes. There
was the recent statement of Wendell Willkie in which
he stated that the “economic opportunity (of Negroes)
should not be limited by their color”. (See Appendix
“D ” for Mr. Willkie’s full statement.)
President Roosevelt asked the January 1944 Boiler
makers ’ convention to end the discriminations in the
interest of the war. Malcolm Ross, Chairman of the
FEPC, and Admiral E. C. Land, Chairman of the
W a r Shipping Administration, addressed similar ap
peals to the Boilermakers. (T. p. 12.)
In spite of all of this: a nationwide demand that
they end their discriminatory practices, and a nation
wide accusation that their actions were and are harm
ful to the war effort, the Boilermakers have remained
adamant. They seem willing to serve the mortal
enemies of our country.
34
It would appear that only the strong arm of the law
and the threat of imprisonment for contempt (if they
should violate the injunction) can compel the Boiler
makers to rectify this situation.
Has the Court the power which all others lack ?
II.
IT IS CONTRARY TO THE PUBLIC POLICY OF THE STATE OF
CALIFORNIA FOR A LABOR ORGANIZATION TO DISCRIMI
NATE REGARDING MEMBERSHIP STATUS OF PERSONS
SUBJECT TO ITS JURISDICTION ON THE BASIS OF COLOR
ALONE.
W e have already developed at length the discrimina
tory practices of the Boilermakers Union against
Negroes. W e have noted the protection given Negroes
by the Courts under the Fifth Amendment (federal
action) and the Fourteenth Amendment (state action)
in cases which are analogous to ours.
The public policy of the United States is further
declared by the President ’s Executive Order No. 9346,
providing, in part, as follows:
“In order to establish a new Committee on Fair
Employment Practice, to promote the fullest
utilization of all available manpower, and to
eliminate discriminatory employment practices,
Executive Order No. 8802 of June 25, 1941, as
amended by Executive Order No. 8823 of July 18,
1941, is hereby further amended to read as fol
lows:
W hereas the successful prosecution o f the war
demands the m axim um em ploym ent o f all avail-
35
able workers regardless of race, creed, color, or
national origin; and
W hereas it is the policy of the United States
to encourage full participation in the war effort
by all persons in the United States regardless of
race, creed, color, or national origin, in the firm
belief that the domocratic way of life within the
nation can be defended successfully only with the
help and support of all groups within its borders;
and
W hereas there is evidence that available and
needed workers have been barred from em ploy
ment in industries engaged in war production
solely by reason o f their race, creed, color, or
national origin, to the detrim ent o f the prosecu
tion of the war, the w orkers’ morale, and national
u n ity :
N o w T herefore, by virtue of the authority
vested in me by the Constitution and statutes, and
as President of the United States and Commander
in Chief of the Army and Navy, I do hereby re
affirm the policy of the United States that there
shall be no discrimination in the employment of
any person in war industries or in Government by
reason of race, creed, color, or national origin, and
I do hereby declare that it is the duty of all em
ployers, including the several Federal departments
and agencies, and all labor o rg a n iza tio n s , in fur
therance of this policy and of this Order, to elimi
nate discrimination in regard to hire, tenure,
terms or conditions of employment, or union m e m
bership because of race, creed, color, or national
origin. (Our emphasis.)
36
It is hereby ordered as follows:
1. All contracting agencies of the Government
of the United States shall include in all contracts
hereafter negotiated or renegotiated by them a
provision obligating the contractor not to discrimi
nate against any employee or applicant for em
ployment because of race, creed, color, or national
origin and requiring him to include a similar pro
vision in all subcontracts.
2. All departments and agencies of the Govern
ment of the United States concerned with voca
tional and training programs for war production
shall take all measures appropriate to assure that
such programs are administered without discrimi
nation because of race, creed, color, or national
origin.
* * * * * * *
F ranklin D. R oosevelt.
T he W hite H ouse,
May 27,1943.”
It may be argued that none of these provisions
standing alone (i.e. the Fifth and Fourteenth Amend
ments, and the President’s Order) would control the
case at bar. But taken together, they declare the pub
lic policy of this nation and state at this time of war
time emergency when it is vital that all workers, in
cluding Negroes be fully integrated into the industrial
life of America, and when it is absolutely necessary
that there be no cause for, or unrest at home which
will be harmful to the homefront unity which is so
essential for a successful prosecution of the war. (See
Appendix “E ”— decision in parallel Rhode Island
case, H ill v . B o ile rm a k e r s.)
37
Appellants argue that the Executive Order lacks
the power of law. That point is inapplicable. All
that we need here is an expression of public policy,
which the Executive Order certainly is. But in addi
tion, the order was issued by the President pursuant
to his war powers, and as such is entitled to weighty
effect. A similar point was raised by the Nazi spies
in the case of E x p a r te Q u ir in , 317 U. S. 1, 63 S. Ct.
1, 87 L. Ed. 3, wherein petitioners argued that the
President lacked statutory or constitutional authority
to order them tried before a military tribunal. The
Court held that the President had such power, saying,
317 U. S. 25:
“But the detention and trial of petitioners—
ordered by the President in the declared exercise
of his powers as Commander in Chief of the
Army in time of war and of grave public danger
— are not to be set aside by the courts without the
clear conviction that they are in conflict with the
Constitution or laws of Congress constitutionally
enacted.
Congress and the President, like the courts,
possess no power not derived from the Constitu
tion. But one of the objects of the Constitution,
as declared by its preamble, is to ‘provide for the
common Defence,’ Art. 1, Sec. 8, cl. 1; ‘To raise
and support Armies,’ ‘To provide and maintain
a Navy,’ Art. 1, Sec. 8, cl. 12, 13; and ‘To make
Rules for the Government and Regulation of the
Land Forces,’ Art. 1, Sec. 8, cl. 14. Congress is
given authority ‘To declare War, grant Letters
of Marque and Reprisal, and makes Rules con
cerning Captures on Land and Water,’ Art. 1,
38
Sec. 8, cl. 11; and ‘To define and punish Piracies
and Felonies committed on the high Seas, and
Offences against the Law of Nations,’ Art. 1, Sec.
8, cl. 10. And finally the Constitution authorizes
Congress ‘To make all Laws which shall be neces
sary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United
States, or in any Department or Officer thereof.’
Art. 1, Sec. 8, cl. 18.
The Constitution confers on the President the
‘executive power’, Art. 2, Sec. 1, cl. 1, and im
poses on him the duty to ‘take Care that the Laws
be faithfully executed.’ Art. 2, Sec. 3. It makes
him the Commander in Chief of the Army and
Navy, Art. 2, Sec. 2, cl. 1, and empowers him to
appoint and commission officers of the United
States. Art. 2, Sec. 3, cl. 1.
The Constitution thus invests the President as
Commander in Chief with the power to wage war
which Congress has declared, and to carry into
effect all laws passed by Congress for the conduct
of war and for the government and regulations
of the Armed Forces, and all laws defining and
punishing offenses against the law of nations, in
cluding those which pertain to the conduct of
war.”
and 317 U. S. at p. 28:
“By his Order creating the present Commis
sion he has undertaken to exercise the authority
conferred upon him by Congress, and also such
authority as the Constitution itself gives the
Commander in Chief, to direct the performance
39
of those functions which may constitutionally be
performed by the military arm of the nation in
time of war.”
There was a similar decision in the Japanese exclu
sion case, H ira b a y a sh i v . U n ite d S ta te s , 320 U. S. 81,
93, 63 S. Ct. 1393, 87 L. Ed. 1731:
“The war power * * * extends to every matter
and activity so related to war as substantially to
affect its conduct and progress. The power is
not restricted to the winning of victories in the
field and the repulse of enemy forces. It em
braces every phase of the national defense, in
cluding the protection of war materials and the
members of the armed forces from injury and
from the dangers which attend the rise, prosecu
tion and progress of war.”
In that case the President’s order excluding
Japanese from the Pacific Coast (Western Defense
Area) was approved as a necessary war measure.
The President’s war powers are broad, certainly
broad enough to cover the situation where the Boiler
makers may be made to cease discriminating against
Negroes if they are broad enough to order Nazi spies
tried before a military tribunal which condemned
them to death and broad enough to exclude citizens
from their homes.
Since the actions of the Boilermakers are harmful
to the war effort, since the work performed by
Negroes is on construction all of which is paid for by
the United States through money raised by taxation
40
(including taxation on Negroes), since the contracts
possessed by the Boilermakers were underwritten by
the United States, it should be obvious that the public
policy of the nation and state is powerful enough to
end the discriminatory practices here involved.
Throughout this entire case, there has not been one
word uttered by the Boilermakers to justify their
discriminations against Negroes. They cannot justify
their actions. The discriminations are the result of
their fiat. The Boilermakers would prefer to remain
silent. But their behavior can be explained. Their
discriminations are based on the theory of the su
premacy of the “Aryan race”, in other words, are
rooted in the doctrines of Adolph Hitler’s “Mein
Kampf”. The Boilermakers are in effect acting as
exponents of the preachings of Hitler. What is there
different in the actions of the Boilermakers as re
vealed in the instant case and the following pro
nouncement of Adolph Hitler?
“It is a futile enterprise to argue which race
or races were the original bearers of human cul
ture and, with it, the actual founders of what we
sum up with the word ‘mankind’. It is simpler
to put this question to oneself with regard to the
present, and here the answer follows easily and
distinctly. What we see before us of human cul
ture today, the results of art, science, and tech
niques, is almost exclusively the creative product
of the Aryan. But just this fact admits of the
not unfounded conclusion that he alone was the
founder of higher humanity as a whole, thus the
prototype of what we understand by the word
41
‘man’. He is the Prometheus of mankind, out of
whose bright forehead springs the divine spark
of genius at all times, forever rekindling that fire
which in the form of knowledge lightened upon
the night of silent secrets and thus made man
climb the path toward the position of master of
the other beings on this earth. Exclude him— and
deep darkness will again fall upon the earth, per
haps even, after a few thousand years, human
culture would perish and the world would turn
into a desert.
If one were to divide mankind into three
groups: culture-founders, culture-bearers, and
culture-destroyers, then, as representative of the
first kind, only the Aryan would come in ques
tion.19
From time to time it is demonstrated to the
Herman petty bourgeois in illustrated periodicals
that for the first time here or there a negro has
become a lawyer, teacher, even clergyman, or even
a leading opera tenor or something of that kind.
While the stupid bourgeoisie, marveling, takes
cognizance of this miraculous training, filled with
respect for this fabulous result of our present
educative skill, the Jew knows very slyly how to
construe from this a new proof of the correctness
of his theory of the equality of men which he
means to instill into the nations. It does not
dawn upon this depraved bourgeois world that
here one has actually to do a sin against all
reason; that it is a criminal absurdity to train
a born half-ape until one believes a lawyer has
been made of him, while millions of members of
19Adolph Hitler, “ Mein Kampf”, p. 397. (Reynal & Hitch
cock, 1940.)
42
the highest culture race have to remain in en
tirely unworthy positions; that it is a sin against
the will of the eternal Creator to let hundreds
and hundreds of thousands of His most talented
beings degenerate into the proletarian swamp of
today, wThile Hottentots and Zulu Kafirs are
trained for intellectual vocations. For it is train
ing, exactly as that of the poodle, and not a
scientific ‘education’. That same trouble and
care applied to intelligent races, would fit each
individual a thousand times better for the same
achievements. ”20
If the Boilermakers may legally segregate and dis
criminate against Negroes in this manner, then they
may do the same to any other minority group, or any
racial or religious group. Would anyone contend that
the union could legitimately refuse to admit Jews to
membership because they were Jews, or give them
a second-class status because of that fact? Or do the
same to Catholics, or Methodists, or Armenians, or
Chinese, or foreign-born, or people from Oklahoma
and Arkansas? To pose the question indicates the
answer. Such actions would on their face appear to
be so violative of public policy that a court could not
permit them to stand. The same answer must be true
of Negro discrimination, for while this group may
not have the power, influence, or friends that other
groups have, the discriminations are just as real and
demanding of correction.
Cf. United States Constitution, Amendments I
and X IV ;
20Hitler, op. cit., p. 639.
43
Jones v. Opelika, 319 U. S. 103, 63 S. Ct. 890,
87 L. Ed. 1290;
Murdock v. Pennsylvania, 319 U. S. 105, 63 S.
Ct. 870, 87 L. Ed. 1292;
West Virginia State Board of Education v.
Barnette, 319 U. S. 624, 63 S. Ct. 1178, 87
L. Ed. 1628;
Near v. Minnesota, 283 U. S. 697, 51 S. Ct. 625,
75 L. Ed. 1357;
Grosjean v. American Press Co., 297 U. S. 233,
56 S. Ct. 444, 80 L. Ed. 660;
Hague v. C. I. 0., 307 U. S. 496, 59 S. Ct. 954,
83 L. Ed. 1423;
Schneider v. New Jersey, 308 U. S. 147, 60 S.
Ct. 146, 84 L. Ed. 470;
Carlson v. California, 310 U. S. 106, 60 S. Ct.
746, 84 L. Ed. 1104;
Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct.
736, 84 L. Ed. 1093;
Bridges v. California, 314 U. S. 252, 62 S. Ct.
190, 86 L. Ed. 192.
In California, public policy has been defined thus
by the District Court of Appeal in Noble v. City of
Palo Alto, 89 Cal. App. 47, p. 51:
“Public policy means the public good. Anything
which tends to undermine that sense of security
for individual rights, whether of personal liberty
or private property, which any citizen ought to
feel is against public policy. It is the evil ten
dency and not the actual result which is the test
of illegality.”
And see California Civil Code, Sections 51 and 52.
44
These discriminatory, segregatory, unequal prac
tices of the Boilermakers against the Negroes cer
tainly offend the public policy of both the state and
nation and properly should be enjoined.
III.
DENIAL OF EQUAL MEMBERSHIP STATUS BY A LABOR
ORGANIZATION TO WORKERS SOLELY ON ACCOUNT OF
COLOR IS CONTRARY TO LAW.
The Boilermakers argue that they have the right to
exclude persons entirely from membership, and there
fore the union has the right to accept them on any
conditions the union desires to impose. They cite
Greenwood v. Building Trades Council, 71 Cal. App.
159, which was a case involving the right of a central
labor body to determine which of two rival unions was
entitled to be seated, entirely different from the case
at bar. The statements therein as to membership
in a labor body are dicta. If the Greenwood case holds
what the union thinks it does, then that case must be
re-examined in the light of newly developed facts and
in view of the wartime emergency. Miller v. Ruehl, 2
N. Y. S. (2d) 394, and Mayer v. Journeymen Stone
cutters’ Association (N. J.), 20 Atl. 492, both hold
that a union has the power to determine who it will
admit to membership, but neither presents the kind
of situation we have here. The general statements in
those cases are valueless to the matter before this
Court.
In general, a union does have the power to de
termine who shall be admitted to membership. Where
45
a person has gained membership, he must be treated
according to principles of due process. O tto v.
J o u rn e y m en T a ilo rs U n ion , 75 Cal. 308; E llis v .
A m erica n F ed e ra tio n o f L a b o r, 48 Cal. App. (2d) 440.
If a member must be treated according to prin
ciples of due process, it would seem that applicants for
membership must be treated accordingly, particularly
under the circumstances of this case. The Negro
workers here involved are not newcomers seeking orig
inal membership in order to work. They were most of
them employed for more than a year at Marinship
before the auxiliary came into existence. When they
first went to work, the Boilermakers dispatched them,
but either didn’t take money from them, or took
money and gave them receipts from Local 6. After
a year, the auxiliary A-41 was created, and the Boiler
makers sought to coerce all the Negroes to join this
organization. The Negroes’ refusal brought the con
troversy to a head.
Thus we have the situation where, in the first in
stance, the workers are employed and the union seeks
their discharge, not the usual case where the worker
comes to the union asking membership in order to
obtain work.
Next, in this case, the union is taking in all workers.
The books are neither closed nor restricted. The union
will accept all Negroes, like it will accept all other
workers, but the Negroes must join the auxiliary
while all other workers join Local 6. Thus, the case
is not one where a worker seeks to join a union whose
books are closed.
46
Further, the union has a closed shop. The Negroes
do not attack the closed shop, but recognize it. They
recognize it by asking to join the union. They must
be in good standing in order to work. Therefore, the
union cannot legitimately refuse membership to the
Negroes. And since workers are being admitted, all
must be admitted on equal terms. To admit white
workers on conditions superior to Negroes is to deny
equal treatment to the Negroes, which as we have seen
is contrary to public policy.
In this case, the Boilermakers argue that the
Negroes attack the closed shop which this Court held
valid in M c K a y v . R e ta il A u to S a le sm e n ’s L ocal
U nion , 16 Cal. (2d) 311, and companion cases. The
Negroes do nothing of the kind. They recognize the
closed shop by seeking to join the union. If the union
keeps them out, the union is in no position to com
plain when the Court orders that the Negroes be al
lowed to work without joining the auxiliary in view of
the union’s action. In the M c K a y case, supra, the
union was picketing to compel the workers to join
the union, and which this Court held to be a legitimate
exercise of the right of freedom of speech. In our
case, the union is in effect picketing to keep workers
(Negro) out of the union. Any attack on the closed
shop, therefore, is of the union’s making and is easily
within the power of the union to rectify, and as Judge
Butler’s order says, when the union indicates its
willingness to admit Negroes on terms equal with
white workers, then the union can require clearances
of Negroes.
47
This effectively disposes of the Boilermakers argu
ment that the Negroes are getting a “free ride”. The
Negroes don’t want a free ride. They want to and
are willing to pay their share. Can they help it if the
union refuses their offer? But neither can they be
condemned for refusing to pay money to an organiza
tion which styles itself a union but is in fact a racket.
The Boilermakers cannot blow hot and cold. If thev
want the dues, let them eliminate the discriminations.
Similarly, there is no occasion for the Court to im
pound dues. The union can get those dues at any
time it corrects its own derelictions. This is unlike
the streetcar case where the money was going to the
wrongdoer which prompted this Court to impound the
funds.
Although appellant Boilermakers in their brief have
not definitely raised the point, we anticipate that in
the argument and in the am icus curiae brief of the
American Federation of Labor which we have been
informed will be filed, the point will be made that to
allow these Negro workers admission to the union on
terms equal with white workers, against the union’s
objections and restrictions, will open the door to per
mit any workers to obtain membership in a union by
resort to the Courts, even though the union may have
good grounds to reject such persons. The unions
thereby will argue that the way for their destruction
by anti-union elements is made clear.
There are several answers to this argument. First,
even assuming that such fears are well founded (and
we say they are not), the fact that some bad result
48
may occur in another case not yet presented to the
Court is no reason to deny relief to these Negro
workers under the conditions shown to exist here.
After all, this is the case that is calling for decision,
and not some case that may never occur. Furthermore,
we believe that greater social and economic evil will
result from denying the relief these Negroes seek than
can ever occur from problematical danger feared by
the union.
Next, the fears that the union here possesses are
the fruit of their own creation. If they had admitted
the Negroes on equal terms, the case never would have
arisen. The Boilermakers are, it seems to us, in no
position to claim protection from some future attack
when they by their own wrongful acts have put them
selves in the situation in which they fear such a result.
But more important than all, this is no indiscrimi
nate effort on the part of unqualified and anti-union
elements to force themselves into a union. The Negroes
are as much entitled to admission in the union as any
other group. The sole reason they are denied ad
mission and shunted into auxiliaries, which are not
unions but simply dues collecting rackets, is because
of their color. The Boilermakers are admitting all
qualified workers. The books are open. The jobs
are there. As long as such a situation exists, the union
cannot admit one class of workers on terms superior
to another class when the only basis for the unequal
classification is race and color.
W e do not say that a union must be forced to admit
all people regardless of any fair conditions which the
49
union may have established for its own protection.
A union might limit itself to the original members.
It might close its books at a given number. It might
refuse to admit anti-union persons. But none of these
are the situation in our case. The Negroes are dis
criminated against solely on account of color. If the
union were to close its books at a given number, say,
but admit all persons up to that number on equal
terms regardless of race or color, then no one could
have cause to complain.
But when the books are open; the jobs are there;
a manpower shortage exists; a great war is going on
in which the integration into industry of all workers
is a burning necessity; when there is disaffection
among a group of our people which is the largest
single minority in the country, the Negroes, because of
unjustifiable discriminations based on blind prejudice,
such as the actions of the Boilermakers; when the
union holds a closed shop and membership is neces
sary to earn a livelihood; when the Negroes seek
admission to the union on terms of equality with white
workers in order to work, and also to support the
union; we assert with all the vigor and earnestness
we possess that it is a great wrong which cannot be
countenanced for the Boilermakers to be permitted
to discriminate in the manner shown here. Such
actions are clearly contrary to public policy.
And the public policy must prevail, regardless of '
the union’s fears for the future. After all, the Boiler
makers hold their own salvation in their own hands.
If they stop the discrimination, the case is at an end,
50
and no precedent will be established to haunt them in
later years. They who seek equity must do equity.
Finally, the narrow question presented here would
hardly be precedent for the broad proposition con
templated by the union that any person desiring ad
mission to any union is entitled to such a right.
There are several cases which we believe are per
suasive on the present issue. The most important is
C am eron v. In te rn a tio n a l A llia n ce o f T h ea tr ica l S ta g e
E m p lo y e e s (N.J.), 176 Atl. 692, 97 A.L.R. 594.
The Court in the C am eron case recognized the
right of a union to prescribe qualifications for m e m
bership, but held that the contract of membership
must not be repugnant to public policy or the public
interest. It was held that an alleged membership con
tract classifying the union members as “seniors” and
“juniors” denying the latter the right of participa
tion in the formulation of the policies of the union and
of the management of its business, at the same time
assessing “juniors” at a rate in excess of that imposed
upon “seniors” effects an unreasonable restraint of
contract. The Court called special attention to the fol
lowing elements of discrimination against “juniors”:
1. Denying them the right of participation in the
formulation of the policies of the union;
2. Denying them the right of participation in the
management of the union’s business;
3. Vesting the power to determine the wage scale
in the “seniors”;
51
4. Vesting the power to determine acceptable work
ing conditions in the “seniors”;
5. Giving to “seniors” exclusive control of the
apportionment of work;
6. Lodging in the “seniors” all bargaining power;
7. Giving the “seniors” power arbitrarily to bar
“juniors” from membership in the union proper and
from all participation therein;
8. Prohibiting “juniors” from making agreements
with their employers relating to work or salaries.
(These acts of discrimination are very similar to those
in the instant case.)
The Court held that these acts of discrimination con
stituted a transfer to the “seniors” of the “juniors’ ”
bargaining power and fundamental right of contract,
and that these acts of discrimination effected an un
reasonable restraint of contract, which restraint had
for its purpose the advancement of the individual
interests of the “senior” members solely. The Court
held that under the circumstances equitable interposi
tion is not only justified, but demanded, by the public
interest.
The Court held that the power of workers to unite
to secure a higher wage rate or a betterment of their
working conditions, or the legitimate advancement of
the general welfare of the members of the union, is
subject to a corollary that such power shall not be
misused, and that it shall not be employed to the detri
ment of society, or used as a means of oppression and
injustice in respect of its members, or to deprive any
52
of them of the fundamental rights when the public
interest cannot be served by such deprivation.
The Court held that, there can be no arbitrary or
capricious discrimination between the members of the
union with respect to equality of opportunity to work.
The Court held that the classification was an unrea
sonable restraint of trade, was obnoxious to the law,
and was clearly contrary to the public interest.
The New Jersey Court said, 176 Atl., at page 697:
“Trade union membership, like other contractual
relationships, is purely voluntary on both sides.
Such organizations come into being for purposes
mutually agreed upon. The cohesive force is the
common interest. Their right to prescribe quali
fications for membership and to make rules and
regulations for the transaction of their lawful
business is not open to question. They may impose
such requirements for admission and such formali
ties of election as may be deemed fit and proper;
they may restrict membership to the original pro
moters, or limit the member to be thereafter ad
mitted; the power of such a body to make its
membership exclusive is incident to its character.
The underlying theory of such combinations is
association mutually acceptable, or in accordance
with regulations agreed upon. Enforced admis
sion to membership is manifestly contrary to the
scheme of such a society. No person has an ab
stract or absolute right to such membership.”
“ B u t the co n tra c t m u st n o t he rep u g n a n t to p u b lic
p o lic y . Is this contract in that category? What
considerations require the rejection of a contract
as violative of sound governmental policy? The
53
personal liberty and right of property guaranteed
by the Fifth Amendment of the Federal Constitu
tion embrace the right to make contracts for the
purchase of the labor of others, and equally the
right to make contracts for the sale of one’s own
labor. * * * The question remains, can the union,
as a sine qua non of membership, require a sur
render or substantial modification or impairment
of this individual constitutional right of freedom
of contract in respect of the disposal of one’s
labor? Is this an unalienable right? It has been
so termed.”
And at page 698:
“The same public policy which imposes restraint
upon individual liberty and freedom of contract,
when required for the common good and general
welfare, embraced within the police function of
government, ordains that such individual rights
shall not be surrendered or impaired, if thereby
the public interest will be injuriously affected.
There has been, in modern times, a noticeable
quickening of social consciousness— a growing
appreciation of public needs, and relation of in
dividual right to public security. The desidera
tum is social security; and its attainment of neces
sity requires the finding of a basis for rational
compromise between individual rights and the
public welfare. ‘The interrelation of the activities
of our people and the complexity of our economic
interests’ require the use of reasonable means to
‘safeguard the economic structure upon which the
good of all depends.’ The fundamental interests
of the state must be secured; the common interest
is of paramount concern.”
54
And at page 699:
“It thereby accorded recognition to the now gen
erally accepted view that such combinations are
conducive to the well-being of society, and a neces
sary part of the social structure. The ameliora
tion of the condition of labor is now regarded by
enlightened government as a duty of paramount
importance. The economic independence and se
curity and contentment of labor are essential for
the public order and welfare. * * *
“But it is a corollary of the foregoing that the
power thereby conferred shall not be misused. It
shall not be employed to the detriment of society;
it shall not be used as a means of oppression and
injustice in respect to its members, or to deprive
any of them, in the form of a contractual sur
render, or otherwise, of their fundamental rights
when the public interest will not thereby be
served. There can be no arbitration of capricious
discrimination between the members of the union
in respect to equal opportunity to work. The
arbitrary use of the power derived from such
combination to advance the interest of some of the
members, at the expense of the remainder, would
thwart the fundamental purpose of such union,
and defeat public policy. Public policy is the
public interest. It transcends individual rights.
It is patent that the senior members are striving
to obtain a monopoly of the labor market in this
particular trade and to deprive the junior member
of any equal opportunity to obtain employment
and earn a livelihood for himself and his family.
In fact, monopoly has been practically accom
plished; absolute and complete domination of the
labor market is within reach. The public evils
55
flowing from this policy are apparent. It tends
to economic servitude— the impoverishment of
the one class for the enrichment of the other— and
is manifestly opposed to the public interest. T he
in e v ita b le resu lts are the loss o f the serv ice s o f
u sef ul m em b ers o f so c ie ty , and u n res t, d isco n ten t,
and d isa ffec tio n am ong the w o rk ers so re s tra in e d
— a co n d itio n th a t is u n q u estio n a b ly in im ica l to
p u b lic w e lfa re . This is an unfair exercise of the
power springing from the combination. I t is an
a r b itr a r y an d unreasonable r e s tra in t o f tra d e , and
th e re fo re obnoxious to th e law . A c lassifica tion so
based is c lea r ly c o n tra ry to th e p u b lic in te r e s t .”
(Our emphasis.)
It is quite apparent from the C am eron case that a
union’s dealings with persons under its jurisdiction,
members and persons subject to membership, must be
fair. I f a un ion cannot se t up tw o classifica tion s o f
m e m b ersh ip w h ere no reasonable basis e x is ts f o r such
a c tio n , e x ce p t th e d esire o f one g ro u p to fa v o r i ts e lf ,
i t fo llo w s th a t th e union cannot d en y m em b ersh ip on
an un equ al and u n reasonable basis, n a m ely , color.
Accord:
W ilso n v . N e w sp a p e r & M a il D e liv e r e r ’s U n ion
(N. J.), 197 Atl. 720;
S ch w ab v . M o vin g P ic tu r e M ach ine O p e ra to rs
L oca l (Ore.), 109 Pac. (2d) 600;
C a rro ll v . In te rn a tio n a l B ro . o f E lec . W o rk e rs
(N. J.), 31 Atl. (2d) 223.
Finally, the Constitution of California, Article I,
Section 1, provides that:
56
“All men are by nature free and independent, and
have certain inalienable rights, among which are
those of enjoying and defending life and liberty;
acquiring, possessing, and protecting property;
and pursuing and obtaining safety and happi
ness.”
If that constitutional provision means anything, it
means that these plaintiffs who have acquired jobs are
free to remain on these jobs without being discrimi
nated against. Furthermore, the vital need of man
power in the shipyards should compel the Court to
keep plaintiffs on the job without being subjected to
discrimination. In this connection we have pleaded
the vital manpower need (T. p. 11) and the Boiler
makers have not denied it. They cannot deny what
is a fact, and a vital fact in this case.
Nor can the union argue that its action is that of a
private individual which the Courts are powerless to
control. The same answer is applicable that the
Supreme Court gave to a similar contention in Smith
v. Allright, supra. In that case, it was held that state
action resulted from the disenfranchisement of Ne
groes by a political party. So in our case, unions have
so grown in strength, power and influence, and with
the possession of a closed shop, that with such power
goes the corollary proposition that it shall not be
abused. Since it has been abused in this case, the
union camiot hide behind the shield that would have
protected it at another time and under different cir
cumstances. Here the union by its actions is impeding
the war effort, and acting contrary to public policy.
57
Its actions, therefore, are subject to Court control in
the same way as the actions of the Democratic Party
in Smith v. Allright, supra.
The union is not a strictly private organization. It
is in many respects an enterprise charged with a sub
stantial public interest. As such, actions such as are
revealed in this case are subject to review and super
vision by the Courts.
Cf. Munn v. Illinois, 94 U. S. 113.
Cases like National Federation of Railway Workers
v. National Mediation Board, 110 Fed. (2d) 529, are
not in point, since the Fifth Amendment admittedly
is restrictive only of federal government and this
group of cases turns on the fact that the Courts lack
power to review the decisions of the National Media
tion Board because the entire procedure is statutory.
Respondent submits that the Boilermakers’ dis
criminatory, segregatory and unequal practices are
unlawful and should be enjoined.
IV .
AN EMPLOYER, POSSESSING A CONTRACT WITH THE UNITED
STATES PROVIDING THAT THE EMPLOYER SHALL NOT
DISCRIMINATE AGAINST WORKERS ON ACCOUNT OF
RACE, COLOR, OR ORIGIN, VIOLATES THAT CONTRACT
AND OFFENDS THE PUBLIC POLICY OF THE STATE AND
NATION B Y PARTICIPATING IN THE DISCRIMINATORY
RACIAL PRACTICES OF A LABOR ORGANIZATION.
Marinship argues that the discriminations here are
all of the union’s making, and therefore no concern
58
of it. The employer argues that to enjoin it is to
impair its closed shop agreement with the union. The
employer further argues that for it to refuse to dis
charge workers (Negroes or white) when asked to do
so by the union, where the worker is not in good
standing, would be to interfere with the internal af
fairs of the union and subject itself to the penalties
of the National Labor Relations Act.
In the first place, the complaint alleges and the com
pany’s demurrer admits that it is participating in the
discriminatory practices. This being the case, if the
union can be enjoined, so can the company. Further
more, an injunction against the company which does
the hiring and firing is necessary in order to make the
injunction against the union effective.
That this is not an attack on the closed shop we
have already developed. Nor is it an effort to cause
the company to interfere in the internal affairs of the
union. H o w can the company be said to be interfering
with the internal affairs of the union when it knows
of the discriminatory practices of the union against
Negroes, knows why it is asked by the union to dis
charge Negroes, and then refuses to be a party to such
discriminations by calling attention to the contract it
has with the government ? That has nothing to do with
interference with a union’s internal affairs.
In this case, it would appear to us that the very fact
that the company labors the union’s position and ac
cepts the union’s argument on this appeal is proof of
our charge that the company is itself engaged in dis
criminatory practices.
59
W e have pleaded that the contract between the com
pany and the government containing a non-discrimina
tion clause (T. p. 4) is for the benefit of plaintiff. If
this non-discriminatory clause is not for the benefit of
Negro workers like plaintiff (and for the interest of
the Government as a matter of public policy) it is not
for anyone’s benefit. Obviously, the provision is in the
contract for a purpose. That purpose is to allow the
Negro plaintiff to take advantage of it as he is
trying to do here, and to compel the company to abide
by the public policy of the United States.
Pertinent here are the declarations and findings of
the President’s Committee in the case of Kaiser Co.,
Inc. and the Oregon Shipbuilding Corp., where the
companies took the same position that Marinship is
taking here.21 The President’s Committee had this to
say:
“ The P o s itio n o f th e C om pan ies.
The case for the Kaiser Company, Inc., and the
Oregon Shipbuilding Company, consisted of the
statement of counsel, the testimony of Mr. Edgar
21The FBPC has set aside this decision (issued on December 9,
1943) and ordered a rehearing. We do not offer the statements
as authority, but rather as argument.
The members of the President’s Committee, who sat in this
case, representing all groups of American life and also all groups
of labor were Malcolm Ross, General Chairman, John Brophy of
the National C.I.O., Boris Shishkin, of the National A.F. of L.,
Milton P. Webster of the Pullman Car Porters, Sara Southall,
Personnel Director of International Harvester, P. B. Young, Sr.,
a Negro publisher, and Samuel Zemurray, President of the United
Fruit Company. It will thus be seen that this committee is no
narrow sectarian group but is rather a broad committee to which
the two great houses of labor have given their unqualified sup
port and assigned members.
60
F. Kaiser, general manager of the two Companies,
and corroborating documentary evidence.
The Companies admit that they are and have
been following the policy and practice of refusing
to hire Negroes in skills subject to the jurisdiction
of the Boilermakers Union unless cleared by
Subordinate Lodge 72 and 401, and the policy and
practice of discharging Negro employees certified
as not in ‘good standing’ has been due solely to
the insistence of the Union that Negroes accept
and maintain discriminatory membership in Aux
iliary Lodge A-32.
The Companies further admit that the rejection
and discharge of Negroes mider these circum
stances has resulted in a serious aggravation of
the critical manpower shortage in the shipyards.
Mr. Kaiser acknowledged that to the extent
Negroes have been employed their aid has been of
‘immense importance.’ He testified that he could
not get all the workers he needed among white
persons, and that aside from the unknown number
of man-hours lost from Negroes who might have
been employed, the loss of man-hours from
Negroes already employed ‘who got those stop
orders and terminated their employment because
they didn’t wish to join the auxiliary, has been
great in itself.’ Figures submitted by the Com
panies indicate that since January 1, 1943, ‘upon
order’ of the unions here involved, a total of 345
Negroes were discharged, of whom 217 were re-
liired within one week (presumably after accept
ance of the discriminatory union status)— a net
loss of 128 employees.
The Companies, engaged as they are in the pro
duction of ‘Liberty’ and ‘Victory’ merchant ships,
61
tankers, and escort aircraft carriers, recognize
that they manage a vital war industry and are
fully obligated not to discriminate because of race
or color by Executive Order 9346 and by the non
discrimination clause which was incorporated in
their contract with the United States Maritime
Commission.
They avow that their constant intention and pur
pose has been to comply; that if the Order has
been violated the blame is not theirs.
First, the Companies contend that they are bound
to follow the aforesaid practices because of the
closed shop provision of a contract, known as the
‘Master Agreement’ in effect between the major
Pacific Coast shipbuilders and the International
Brotherhood.
This contention cannot be accepted. While it is
not the province of this Committee to construe
the contract for the parties, it is obvious that
neither of the parties, consistently with their obli
gations under Executive Order 9346, can give to
any provisions of this private agreement a con
struction or effect which directly results in dis
crimination because of race or color in violation
of the Order.
Secondly, the Companies assert that they have
followed the foregoing policies and practices be
cause of advice of counsel that for them ‘to look
beyond the unions so far as employment of
Negroes is concerned’ would be ‘to interfere with
the internal affairs of the unions’ and lay them
selves ‘liable to violation of the National Labor
Relations Act.’
62
Reluctance of the Companies to involve them
selves in a violation of the National Labor Rela
tions Act is understandable. However, they will
find no basis for their concern in the National
Labor Relations Act or in decisions construing it.
The Committee has sought and received from the
General Counsel of the National Labor Relations
Board an advisory opinion as to the application
of the Act to the situation presented in this case,
stating in part, as follows:
‘When the Board certified a collective bargain
ing representative in accordance with the prin
ciples stated above, the terms and conditions of
employment are matters which are properly
left to collective bargaining between the em
ployer and the certified representative. Like
wise, the enforcement of the provisions of the
collective bargaining agreement, once it is made,
rests with the parties to the agreement and
does n o t com e w ith in th e ju r is d ic tio n of this
Board.’ (Emphasis supplied.)
In the course of the opinion there is cited the
recent decision of the Board in the Bethlehem-
Alameda Shipyard Case, No. R-5693, in which the
Board intimates strongly that an employer who
has a closed shop contract with a union which
excludes Negroes, far from violating the Act if
he ignores the union’s request for discharge of a
Negro employee, will violate the Act if he gives
effect to the request. The Board said:
‘W e entertain grave doubt whether a union
which discriminatorily denies membership to
employees on the basis of race may nevertheless
bargain as the exclusive representative in an
appropriate imit composed in part of members
63
of the excluded race. Such bargaining might
have consequences at variance with the purposes
of the Act. If such a representative should
enter into a contact requiring membership in
the union as a condition of employment, the
contract, if legal, might have the effect of sub
jecting those in the excluded group, who are
properly part of the bargaining unit, to loss of
employment solely on the basis of an arbitrary
and discriminatory denial to them of the privi
lege of union membership. In these circum
stances, th e v a l id i ty u n d er th e p ro v iso o f S e c
tio n 8 (3 ) o f th e A c t o f such a co n tra c t w ou ld
he open to seriou s q u e s t i o n (Emphasis sup
plied.)
The sincerity of the Companies’ motives in this
case need not be drawn in question. Their motive
in engaging in discrimination in conflict with the
Executive Order is entirely irrelevant.
Regardless of the measure of the Union’s re
sponsibility in this case, the power to hire and fire
remains with the Companies, and their obligation
to eliminate the obvious and admitted discrimina
tion because of race or color in hiring and firing
is primary and fundamental.”*
(*At the hearing it was stated for the Companies
that their position in this respect had been sup
ported by advice from officials of the Maritime
Commission. Since the hearing, the Committee
has received from Mr. Daniel S. Ring, Director,
Division of Shipyard Labor Relations, United
States Maritime Commission, a letter dated De
cember 3, in which Mr. Ring advises us that he
has communicated directly with the Company
6 4
These arguments are equally compelling in our case.
Marinship cannot escape either its obligation to the
United States under its contract or its duty under the
President’s Order by such an attitude as it has taken
here. It should be the last party to seek to evade these
express commands of its contract with, and the public
policy of the United States.
W e submit that an actionable case is pleaded against
Marinship.
V.
THE COURT HAS JURISDICTION OF THE INSTANT CASE.
Appellants argue (Boilermakers’ Opening Brief,
pp. 32-34) that the Court below is without jurisdiction
because the matter is properly one for either the
National Labor Relations Board or the W a r Labor
Board. That contention is not the fact. Even if those
agencies had jurisdiction, there is nothing which pre
vents the Court below from asserting jurisdiction on
the basis of the facts pleaded under the doctrine of
public policy.
However, the fact is that neither the N.L.R.B. or
W.L.B. has jurisdiction of the instant case.
The National Labor Relations Act, 29 U.S.C. 151,
does not affect the jurisdiction of the trial Court as to
the subject of the action. T h e N a tio n a l L a b o r R ela -
representatives involved, and there is apparent
agreement that the statement at the hearing was
based on a misunderstanding.”)
65
tio n s A c t is d ire c te d a g a in st em p lo yers , and is in no
w a y d ire c te d a g a in st em ployees. Section 8 of the Act
sets forth what acts shall be considered unfair labor
practices for an employer, and this section implements
the declaration of policy set forth in Section 1 of the
Act. The u n fa ir labor p ra c tic e s are a ll acts w h ich can
be ch arged on ly a g a in s t an e m p lo y er and can n e v er be
ch arged a g a in s t an em ployee .
Furthermore, this case does not involve unfair labor
practices. It involves the question of whether a union
offends public policy by setting up discriminatory
membership requirements based on racial differences.
That is a matter having to do with the internal struc
ture of a union that is not even contemplated by the
National Labor Relations Act.
Nor is there any charge of unfair labor practices
within the contemplation of the Act, viz., interference
with self-organization, or discharge for union activity,
etc., against the employer. The charge against Marin-
ship is that it has joined with the union and discrimi
nated in employment against Negroes on account of
their color and in violation of the company’s contract
with the Government. It should be apparent from this
alone that the National Labor Relations Act has no
bearing at all on the question of the jurisdiction of
this Court on the subject of the present action.
In N a tio n a l L a b o r R e la tio n s B o a rd v . J o n e s an d
L a u g h lin S te e l C orp ., 301 U. S. 1, 57 S. Ct. 615, 81
L. Ed. 893, the Court stated that the purpose of the
Act is to declare the fundamental rights of employees
66
to organize and select their representatives for lawful
purposes, and to prevent discrimination and coercion
on the part of the employer directed against the free
exercise of these rights, so that the workers will have
an opportunity to deal on a basis of equality with
their employers.
See also
N a tio n a l L a b o r R e la tio n s B o a rd v. F a n stee l
M eta llu rg ica l C o rp ., 306 U. S. 240, 59 S. Ct.
490, 83 L. Ed. 627.
In N a tio n a l L a b o r R e la tio n s B o a rd v . G risw o ld
M a n u fa c tu rin g Co. (CCA 3), 106 P. (2d) 713, it was
stated that the whole policy of the National Labor
Relations Act is to redress an inequality in bargain
ing power by forbidding employers to interfere with
development of employee organizations, thereby re
moving one of the issues, most provocative of industrial
strife and bringing about the general acceptance of
the orderly procedure of collective bargaining under
circumstances in which the employer cannot trade
upon the economic weakness of his employees.
A s long as an e m p lo y er does n o t a tte m p t to in te r
fe re w ith th e r ig h t o f se lf-o rg a n iza tio n o f th e em
p lo yees o r to in tim id a te o r coerce th em , th e N a tio n a l
L a b o r R e la tio n s B o a rd has no ju r isd ic tio n .
A p p a la c h ia n E le c tr ic a l P o w e r Co. (CCA 4),
931 P. (2d) 985.
Teller, in T h e L a w G o vern in g L a b o r D isp u te s and
C o llec tive B a rg a in in g , Yol. 2, p. 695, shows that the
history of the Act manifests the intention of Congress
67
to direct the provisions of the Act only against em
ployers. He says:
“An additional reason constantly assigned for
opposition to the act is its alleged one-sidedness
in providing for unfair labor practices commitable
by employers without also providing for like em
ployee unfair labor practices. Insistence upon
this point has induced the legislatures of the
states of Massachusetts, Michigan, Minnesota,
Pennsylvania, and Wisconsin to provide for un
fair labor practices commitable by employees.
Proponents of the act on the other hand have
argued against the contention that the act is un
fair because one-sided. The answer of the act’s
proponents appears to be a twofold one. I n th e
fir s t p la ce i t is a sse r ted th a t the com m on law and
s ta tu te law o f th e severa l s ta te s an d th e F ed era l
g o v ern m e n t are now adequ a te to deal w ith u n la w
fu l a c tiv it ie s c a rr ie d on b y labor. In the law of
torts, crimes and in the labor inj miction along
with various other legal sanctions are found ade
quate weapons to deal with labor activities which
transcend the boundaries of legality.
Secondly, it is argued, the establishment of
counterpart employee unfair labor practices
would serve to impede the enforcement machinery
set up by the act. The report of the committee
on education and labor which accompanied the
National Labor Relations bill upon its reference
to the United States Senate in 1935 thus pur
ported to answer the proposal that employee un
fair labor practices should also be established by
the act: ‘The only results of introducing proposals
of this sort into the bill, in the opinion of the
committee, would be to overwhelm the Board in
68
every case with countercharges and recrimina
tions that would prevent it from doing the task
that needs to be done. There is hardly a labor
controversy in which during the heat of excite
ment statements are not made on both sides which,
in the hands of hostile or unsympathetic courts,
might be construed to come under the common-
law definition of fraud, which in some States ex
tends even to misstatements innocently made, but
without reasonable investigation. And if the
Board should decide to dismiss such charges, its
order of dismissal would be subject to review in
the Federal courts. Proposals such as these under
discussion are not new. They were suggested
when section 7(a) of the National Industrial Re
covery Act was up for discussion, and when the
1934 amendments to the Railway Labor Act were
before Congress. In neither instance did they
command the support of Congress.’ ” (Our em
phasis.)
Whatever question may have once existed with re
spect to this problem has been settled by the United
States Supreme Court in A lle n -B ra d le y L oca l, etc. v .
W isco n s in E m p lo y m e n t R e la tio n s B o a rd , 315 U. S.
740, 62 S. Ct, 820, 86 L. Ed. (2d) 1154. The only
question in that case was whether an order of the
Wisconsin Employment Relations Board entered un
der the Wisconsin Employment Peace Act was
unconstitutional and void as being repugnant to
the provisions of the National Labor Relations Act.
The Wisconsin Act went further than the federal
act by defining unfair labor practices on the part
of employees. The state board found the union
69
guilty of unfair labor practices in the following-
respects : mass picketing for the purpose of hindering
and preventing the pursuit of lawful work; threaten
ing employees desiring to work with bodily injury
and injury to their property; obstructing and inter
fering with entrance to and egress from the factory;
obstructing and interfering with the free and unin
terrupted use of streets; picketing the homes of em
ployees. The board made a cease and desist order
enjoining these acts. The Supreme Court of Wis
consin upheld the order of the state board. The United
States Supreme Court, in upholding action by the
state authorities, said (315 U. S. p. 748):
“W e agree with the statement of the United
States as am icus curiae that the Federal Act was
not designed to preclude a state from enacting
legislation limited to the prohibition or regula
tion of this type of employee or union activities.”
The Court said that Congress did not manifest an in
tention in passage of the Act to exclude states from
asserting their police power. Said the Court, 315 U. S.
page 750:
“Congress designedly left open an area for
state control. * * * The Federal ,Act does not
govern employee or imion activity of the type
here enjoined. * * * Since the state system of
regulation, as construed and applied here, can be
reconciled with the Federal Act and since the
two as focused in this case can consistently stand
together, the order of the state board must be
sustained under the rule which has long obtained
in this Court. * * * It has not been shown that
any employee was deprived of rights protected
70
or granted by the Federal Act or that the status
of any of them under the Federal Act was im
paired.”
In C h ris to ff el v . W isc o n s in E m p lo y m e n t R e la tio n s
B o a rd , 243 Wis. 332, 10 N. W. (2d) 197, cert. den.
320 U. S. 776, the respondents, employees of the Allis
Chalmers Manufacturing Co., were complainants in
a proceeding before the Wisconsin Employment Re
lations Board, in which the appellant union was
charged with unfair labor practices. The board found
against the union on several charges and made cease
and desist orders upon its findings.
One of the grounds of appeal was that the state
board was without jurisdiction to entertain proceed
ings because the National Labor Relations Board had
taken jurisdiction under the National Labor Relations
Act.
The Court overruled this objection, holding that
there was no conflict of jurisdiction.
The Court pointed out that the N L R B has no
jurisdiction of the matters involved in the case, and
said:
“There is no such thing under the national act
as an unfair labor practice by employees, or any
provision for * * *. It thus appears both that
the state board did have, and the national board
did not have, jurisdiction of the matters here
involved which comprise only unfair labor prac
tices by employees and protection of some em
ployees against interference by other employees
with their legal rights through unfair labor prac
tices of such other employees.”
71
See also P a r k <£■ T ilfo rd I m p o r t C o rp . v . In te rn a
tion a l B ro th erh o o d o f T ea m ste rs , etc. (Cal. App.),
139 Pac. (2d) 963.
B. The National W a r Labor Board does not have
jurisdiction of the subject of the action under the
W a r Labor Disputes Act, 50 U. S. C., App. 1502.
The Act provides that the term “labor disputes”,
shall have the same meaning that the term has in the
National Labor Relations Act. The National W a r
Labor Board, according to the Act, has jurisdiction
only when the United States Conciliation Service fails
to settle the “labor dispute” through conciliation and
certifies that it cannot be settled by collective bargain
ing. The order of the board, it is provided, “shall
provide for terms and conditions to govern relations
between the parties which shall be fair and equitable
to employer and employee under all the circumstances
of the case”.
It thus appears that the W a r Labor Board has
jurisdiction only when the case involves a “labor dis
pute” between an employer and his employees. The
act does not deprive the Court of jurisdiction of the
subject of the present action, which is essentially a
dispute between certain employees and a labor union.
Executive Order 9017, which originally established
the National W a r Labor Board, states that the pur
pose of the President’s Order is to prevent strikes
and lockouts and that all labor disputes shall be settled
by peaceful means.
72
It is clear, therefore, that the jurisdiction of the
trial Court has not been taken away by either the
National Labor Relations Act or the W a r Labor
Disputes Act.
VI.
CONCLUSION.
W e believe that we have convincingly demonstrated
that the Boilermakers’ discriminatory and segregatory
practices are definitely those of a very small group in
labor. The fact that both the American Federation
of Labor and Congress of Industrial Organizations as
well as many independent unions, representing the
overwhelming majority of American labor, have sup
ported the F.E.P.C. and its principles and activities,
is proof of the fact that the Boilermakers are almost
alone in (their actions. Their conduct as shown in this
case hurts labor generally and affirmance of the judg
ment below will not only justify the democratic, fair
and liberal treatment by labor generally of Negroes
and all minority groups but will definitely serve no
tice to a small segment of labor, like the Boilermakers,
that they hurt the common welfare, cast improper
reflections upon labor as a whole, and retard the
progress of labor generally by discrimination. An
affirmance will be a victory for the overwhelming
majority of organized labor.
This case is of great public importance. The decision
rendered will be of first impression and will serve as
a guide to Courts in other parts of the nation in simi-
lar cases which have arisen and will arise to meet the
problems posed. Negroes and union men, as well as all
persons interested in an equitable solution of the
question, are watching the case with tremendous inter
est. W e know that this Court will give the case the
consideration it warrants. W e are hopeful and we
submit, that in the interest of justice and in accord
with law, that the judgment below shall be affirmed.
Dated, San Francisco, California,
July 10,1944.
A ndersen & R esner,
George R. A ndersen,
H erbert R esner,
A tto r n e y s f o r R esp o n d en t.
T hurgood Marshall,
A tto r n e y fo r th e N a tio n a l A sso c ia tio n
f o r th e A d va n ce m e n t o f C o lo red
P e o p le ,
O f C ounsel.
(Appendices A, B, C, D and E Follow.)
Appendices A, B, C, D and E.
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Appendix A
AN ANALYSIS OF THE DISCRIMINATIONS AGAINST
NEGROES IN THE BOILERMAKERS UNION.
by Herbert R. Northrup.
I ntroduction.
This analysis outlines the principal differences or
discriminations between the rights and privileges of
Negroes in The Boiler Makers' Union (referred to as
the Union), and the rights and privileges of White
Members.
The constitution of the Union with which we are
concerned is the latest constitution and by-laws, as
amended in the 1937 convention.
The by-laws governing Auxiliary Lodges, from
which we quote, is the bulletin or pamphlet issued by
the Union which bears this legend: By-laws of the
International Brotherhood of Boiler Makers etc.
governing Auxiliary Lodges, as adopted by the
executive council, by authority of the 16th consoli
dated convention, effective January 1, 1938, and
amended July 15, 1942. This pamphlet will be fre
quently referred to in this analysis, as the A u x ilia r y
B y -L a w s .
A P reliminary Outline .
The discriminations against Negroes in the Union
are in many respects directed against the Auxiliary
Local Unions (i.e. the Negro Locals) ; and in other
2
respects are directed against the m em bers of these
Negro Locals.
Some of these discriminations are so far-reaching in
character that they may properly be designated as
m a jo r discriminations. Others, which are less basic
in their discriminatory character, are grouped under
the heading of lesser discriminations.
D iscriminations in F avor op N egroes.
There is no matter with reference to which there
is any discrimination in fa v o r o f N eg ro es , or against
Whites.
Matters in W hich T here I s E quality.
The only matter in which there is entire equality,
without discrimination, is with reference to dues. The
du es are equal.
D iscriminations A gainst N egroes.
I. M a jo r D iscr im in a tio n s .
1. Subserviency of Each Negro Local to a
White Local.
2. Denial of Rights of Negro Members and
Negro Locals to control of the Interna
tional Union, or even to Membership in it.
Denial of Negro Local of Right to have
Business Agent.
3.
3
4. Denial of Negro Local of Right to have
Grievance Committee.
5. Limitations on Right of Negroes to Ad
vancement in Status from Helper to
Mechanic.
6. Limitation on Rights of Employment in
Other Cities.
II. L e sse r D iscr im in a tio n s .
1. Extent of Insurance Coverage.
2. Exclusion of Negro Apprentices.
3. Penalties for Misconduct-Intoxication.
4. Age at Which Members may be Admitted.
1. S u b se rv ie n c y o f E a ch N eg ro L oca l to a W h ite
L ocal.
No Auxiliary, or Negro Local, may be organized ex
cept as subordinate to and an affiliate of a White
Local.
In the by-laws, the W h ite Local is referred to as the
“supervising” Lodge.
In other words, no Negro Lodge can have an inde
pendent or autonomous existence.
It exists only as an affiliate of the White Lodge, and
— as will be pointed out in detail subsequently— it, as
a Lodge, must accept the domination and supervision
of the White Lodge in many important respects.
4
“ A r tic le I , Sec . 7. Where a sufficient number
of persons, with the prescribed qualifications, re
side in the United States, Territories or Posses
sions, or Canada, possessing the qualifications re
quired by the International Brotherhood, they
may apply for and be granted a Charter for the
establishment of an Auxiliary Lodge w id e r the
su p e rv is io n o f th e S u p e rv is in g L o d g e having a
Charter covering the industry or plant where
such Auxiliary Lodge is organized. T he ju r is d ic
tio n o f the A u x ilia r y L o d g e cannot ex ten d beyond,
the ju r isd ic tio n o f the S u p e rv is in g L o d g e .”
(Auxiliary By-Laws.)
“ P re a m b le to A r tic le I I o f A u x il ia r y B y -L a w s .
The duties of the officers of the Auxiliary Lodge
are subject to the supervision and direction of
the officers of the Supervising Lodge.”
Even in the minor and routine matters associated
with the government of the Negro Lodge itself, there
is a provision that no by-law can be adopted by the
Negro Local if it is in conflict with by-laws of the
Supervising White Local.
In other words, the White local can adopt any by
law which is not in conflict with the general constitu
tion and general by-laws; whereas the Negro Local
has the further proviso that its own by-laws may not
be contrary to anything in the local by-laws of the
Supervising White Lodge.
“ A r tic le X V , Sec. 2. The Subordinate Lodge
(i.e. the White Lodge) shall be competent to
make, alter or amend its by-laws, rules and regu
lations from time to time, as may be deemed
expedient, if adopted by two-thirds vote of those
present, after having been read at two meetings
immediately preceding action thereon, provided
they do not in any way conflict with this Con
stitution, or the Constitution, By-laws and Regu
lations of the International Brotherhood.” (Con
stitution of Boiler Makers Union.)
“ A r tic le X V I , Sec . 3. The Auxiliary Lodge
shall be competent to make, alter or amend its
local By-Laws, rules and regulations from time to
time, as may be deemed expedient, if adopted by
two-thirds vote of those present, after having
been read at two meetings preceding action
thereon, p r o v id e d th e y do n o t in a n y w a y conflict
tv ith th ese L a w s o r th e B y -L a w s o f th e S u p e r v is
ing L o d g e , or the Constitution, By-Laws and
Regulations of the International Brotherhood.”
(Auxiliary By-Laws.)
2. D en ia l o f B ig h ts o f N eg ro M em bers an d N eg ro
L oca ls to C o n tro l o f th e In te rn a tio n a l U n ion , or
even to M em b ersh ip in it.
The plain facts are that Negro members of the
Auxiliary or Negro Locals are not in real fact m e m
bers of the General or International Union at all.
Since its inception in the 1890’s, the Union has had
a “white” clause in its Ritual limiting membership
to White persons.
At the 1937 Convention, this “white” clause was
not eliminated; but the International Executive Coun-
G
cil was authorized to set up a system of Negro Auxil
iary Unions.
In accordance with this authorization, the Executive
Council did issue the By-Laws under which the Negro
Locals are organized.
It still remains true, however, that the members
of the auxiliary unions are not in any real sense,
members of the union itself.
This is apparent from an examination of the pro
visions of the Constitution, in comparison with the
provisions of the auxiliary by-laws. Nowhere is a
member of the auxiliary lodge referred to as a m e m
ber of the International Brotherhood.
His rights are not created by the Constitution, but
merely by the fiat of the executive council. The ex
ecutive council, at any time, can enlarge, change, or
diminish the rights of these Negro locals and Negro
members.
On the other hand, the rights of the White members
and White lodges arise under the Constitution, and
can not be modified or impaired without the sanction
of a general convention or a general referendum.
The inferior rights of the Negro lodges and Negro
members— in the sense that they depend upon the
mere say-so of the executive council— appear in the
following language of the auxiliary by-laws.
“ A r tic le I , Sec . 1. There is established here
with the laws and regulations governing auxiliary
lodges as defined by the International Brother
hood of Boiler Makers, Iron Ship Builders and
Helpers of America, in Convention, September
13 to 21, 1937 inclusive, and as adopted by the
International Brotherhood and Executive Coun
cil. These laws and rules shall be effective as
of January 1, 1938 and as amended July 15,
1942. T h ese law s and reg u la tio n s are su b je c t to
change b y th e In te rn a tio n a l E x e c u tiv e C ouncil
and recorded through authority of the Interna
tional Brotherhood. These laws and regulations
shall constitute full and complete membership
rights and privileges for Auxiliary Lodges and
members.” (General Constitution.)
In contradistinction to the auxiliary by-laws which
are “subject to change by the International Executive
Council” at any time— the rights of the White m e m
bers of the White locals are guaranteed by the Con
stitution, and can neither be changed nor impaired
without the formality and sanction of a general con
vention or a general referendum. (See Article I, Sec
tion 3, and Article X of General Constitution.)
It is obvious that the government of the union is in
the general convention.
As stated in the General Constitution (Article 1,
Section 3), “The powers of the International Brother
hood while in session (i.e. in convention) shall be
legislative, judicial and executive”.
The General Constitution provides with meticulous
detail how delegates to this convention shall be se
lected; where and when these delegates shall meet;
how they shall elect the executive officials of the union;
and how these executive officials of the union shall
8
function after the convention has adjourned, and
until the next convention meets.
The Negro lodges and the Negro members of these
Negro lodges have no rights whatever in any of these
matters.
No Negro lodge is entitled to send a delegate to the
general convention.
No Negro member of a Negro local is entitled to
vote for any delegate to the general convention.
No Negro member of a Negro local is entitled to
act as a delegate at the general convention.
No Negro member of a Negro local is entitled to
be elected an officer of the union.
All of these facts result from the basic and essential
fact that the Negro is not in any real sense of the
term, a member of the union.
The Constitution has very broad provisions for de
ciding matters by referendum during the period of
time between conventions.
When these referenda are held, no Negro local
has any right to be consulted or to cast any vote on
the matters involved; nor does any Negro member
of any Negro local have any right to be consulted
or to vote on such legislation.
As illustrative of the fact that the rights are limited
to White members and the White lodges, reference
may be had to the following language in the Con
stitution :
9
“ A r tic le X , Sec. 1. A proposition for legis
lative enactment to amend or revise the Inter
national Brotherhood Constitution or special Con
vention must be endorsed by the Subordinate (i.e.
White) Lodge in which it originated before it
can be sent to the International President, who,
on receipt of the same shall order at once a copy
sent to all Subordinate (i.e. White) Lodge Secre
taries, have same published in the official Journal
for two months, which notice must expire at the
end of the second month in which it is published.
Subordinate (i.e. White) Lodges may vote up
to the end of that period.” (General Constitu
tion.)
“ A r tic le X , Sec. 6. Any member in good stand
ing on the rolls three months previous to the
convening of the Convention of this International
Brotherhood shall have the privilege of drafting
resolutions or amendments to the Constitution or
By-Laws. However, no resolution or amendment
shall be accepted by a Convention that does not
bear the seal and signature of the President and
Recording Secretary of a Subordinate (i.e.
White) Lodge * * *” (General Constitution.)
* * * * * * *
“ A r tic le X V , Sec. 22. Between Convention ses
sions of the International, the Subordinate (i.e.
White) Lodges of the Brotherhood shall have
power to initiate propositions for legislative en
actment by the International Brotherhood at
large, as heretofore provided for in Article X,
Sections 1 and 2, International Constitution.”
(General Constitution.)
In other words, although the Constitution makes
elaborate provisions for protecting the democratic
10
rights of its members and of its subordinate lodges to
exercise full control over the policies and basic laws
of the union, this righ t of democratic participation
is very sharply limited to the W hite members and the
W hite locals.
The Negro members and the Negro locals have no
rights to participate in the smallest degree in this
democratic control.
3. Denial o f the R ight o f Negro Lodges to have
Business Agents.
I t is obvious th a t a business agent is the most vital
or essential official of any local union.
I t is he who has the right and duty of dealing
with the employer.
In many cases the assignment of union members to
jobs is almost exclusively within his discretion.
Although the Negro locals have almost exactly the
same officers and officials as the W hite locals, the one
im portant difference is tha t no Negro local may have
its own business agent.
The officers of the auxiliary or Negro locals are
named and their duties are prescribed in Article I I
of the auxiliary by-laws. There is no provision for a
business agent anywhere w ithin these auxiliary by
laws.
The officers of the W hite Subordinate Locals are set
forth in the constitution (the subordinate lodge con
stitu tion) in Article I I . The officers are named and
their duties are prescribed in almost exactly the same
11
language as in the auxiliary by-laws; but in addition,
the W hite locals have the righ t to elect business agents.
Article I I , Section 10.
This failure to provide for a business agent among
the officers of the auxiliary or Negro local is clarified
by Article I I , Section 14 of the auxiliary by-laws,
wdiich specifically provides that the business agent of
the W hite local shall act not only for his own W hite
lodge which elected him, but also for the affiliated
Negro or auxiliary lodge as well.
“Article I I , Sec. 14. The Business Agent or
General Chairm an of the Supervising Lodge or
D istrict Lodge shall perform the same duties for
the A uxiliary Lodges as is perform ed for the
Supervising Lodges, including the dispatching
and assigning of members to jobs. V ariations
from this principle shall be made only by the In
ternational P residen t.” (A uxiliary By-Laws.)
S tated in another way, if and when there is a
shortage of jobs, it may be confidently expected tha t
the business agent of the W hite local will favor the
members of his own lodge who elected him—rather
than the Negro members in his affiliated lodge, which
has nothing whatever to say about his election, his
salary, or his tenure.
4. Denial of the R ight o f Negro Locals to have
Grievance Committees.
One of the most essential activities of any labor
union is the investigation of grievances on the job in
the m atter of hours, wages or working conditions;
and the attem pt to secure redress through the collec
12
tive force of the union. Any union which does not
have the power to investigate or seek redress for
grievances is simply no union a t all.
No Negro local has the right to its own grievance
committee—but must accept the grievance committee
of the supervising W hite local to which it is affiliated.
The only right of the Negro local is to select one
member to sit as a member of the grievance committee.
“Article I I , Sec. 13. W here there exists in
the same territo ry a grievance committee of the
supervising lodge, the auxiliary lodge shall have
a representative on said committee and said com
mittee shall act for both the supervising lodge
and the auxiliary lodge.” (A uxiliary By-Laws.)
The grievance committee appointed by the W hite
local consists of “ from two to five mem bers” , and it
is obvious, therefore, that the one Negro member from
the Negro local can never have a controlling vote on
any grievance.
In other words, if the grievance should involve dis
crim ination in assignment of jobs in favor of W hites
and against Negroes, the grievance committee of the
union which would hear the m atter, would necessarily
be stacked against the Negro members.
“Article X I I , Sec. 1. Each Subordinate Lodge
shall select a Shop Committee, consisting of from
two to five members, according to the num ber of
men employed in the Shop * * *” (General Con
stitution.)
As if the certainty of control of the W hite local
over the grievance committee were not already made
13
secure—it was made doubly certain by the fu rther
provision in the auxiliary by-laws.
“ Article X I I I , Sec. 1. Shop Committees. The
Supervising (i.e. W hite) Lodge Committee shall
constitute the Committee for both the Supervising
Lodge and the Auxiliary Lodge.” (A uxiliary By-
Laws.)
5. Lim itations on R ight o f Negroes to Advance
ment in S ta tus from H elper to Mechanic.
I t is the ambition of almost every working man to
improve his status. I f he is a helper, he desires to
become an apprentice. I f he is an apprentice, he
desires to become a journeym an—known in the Boiler
Makers Union as a mechanic.
This is p rim arily true because of the increased pay
which the mechanics receive.
There is no discrim ination possible which could bear
so directly or so heavily upon Negroes, as the dis
crim inatory practice which would prevent them from
improving their status from tha t of helper to tha t
of mechanic.
And yet tha t is precisely what is provided for in
the auxiliary by-laws.
There is specific provision that no Negro member
of a Negro auxiliary local may be changed in status
w ithout the approval of the W hite lodge to which his
Negro lodge is affiliated.
The obvious reason for this discrim ination is to
make it u tterly impossible for any Negro to be ad
vanced in status without the consent of the W h ite
14
lodge. This consent— it may be assumed— will not
be given freely or frequently.
“ Article I I , Sec. 15. Any member desiring a
change of classification must first receive the ap
proval of his Auxiliary Lodge, after which it tvill
be necessary fo r him to receive the approval of
the Supervising Lodge. The application will
then be submitted to the International President
for final approval.” (Auxiliary By-Laws.)
6. L im ita t io n on r ig h ts o f e m p lo y m en t in o ther
cities.
It is one of the characteristic advantages of an
“International” union that its membership cards give
rights throughout the length and breadth of the land.
That is to say, a carpenter— or a bricklayer— or a
member of any of the other international unions—
can secure a clearance card which will permit him
as a matter of right to present his union card in any
other city, and thus to be in a position to resume em
ployment.
This is likewise true for the White members of the
White locals of the Boiler Makers Union.
There is a very meticulous set of provisions as to
how and when a member may secure his clearance
card and resume his activities as a member of the
union in another part of the country.
The Negro member of a Negro local is very sharply
limited in this matter.
While he may transfer his membership, it may be
on ly to another Negro auxiliary lodge.
15
“ A r t ic le X V I I , Sec. 8. * * * Members of an
auxiliary lodge m a y tr a n s fe r their membership,
but on ly to another a u x il ia ry lodge .” (Auxiliary
By-Laws.)
But what if the White local in the city to which the
Negro removes does not have an auxiliary local? In
that case there is no means whatever by which his
rights of employment may be protected.
The provisions for clearance cards for White m e m
bers, and as between White locals, are contained in
Section 4 of Article X of the general constitution.
The provisions for clearance cards of Negro m e m
bers of Negro locals are contained in Section 4 of
Article X I of the auxiliary by-laws.
Both sets of provisions are almost exactly the same,
but for this one difference: There is an additional
clause in Section 4 of Article XI (which applies to
Negro members of Negro auxiliary unions) as follows:
“ A r t ic le X I , Sec. 4. * * * Clearance cards can
only be deposited in another auxiliary lodge. If
no auxiliary lodge is available, then clearance
cards must be deposited with the Internationa]
Secretary-Treasurer.” (Auxiliary By-Laws.)
The meaning and significance of this last clause is
somewhat obscure, but apparently it is the intention
to prevent any employment on the part of Negro
members except where there is a Negro auxiliary;
and since there are very few Negro auxiliaries in the
entire country, the range of their employment is cor
respondingly limited and impaired.
16
1. E xten t of Insurance Coverage.
The union provides life insurance for all of its
members.
From each Negro member it collects 70 cents per
month as a premium; and from each White member
it collects the sum of $1.30 per month.
The benefit paid upon the death of a White member
is exactly double that which is paid on the death of a
Negro member.
Where a colored man can not carry insurance which
will pay a death benefit in excess of $500.00— the bene
fit paid in case of the death of a White member is
$1000.00.
In addition, the benefits for partial disability are
correspondingly less for the Negroes. For example,
if a Negro suffers the loss of an eye he is paid $250.00
— whereas for the same disability the White member
is paid the sum of $500.00
If the Negro member suffers the loss of his arm,
he is paid the sum of $400.00; and for the same dis
ability the White member is paid the sum of $800.00.
It is true that the premium paid for insurance cov
erage by the Negro members is only slightly more
than one-half that which is paid by the White m e m
bers (70 cents as compared with $1.30), but the essen
tial discrimination is found in the further fact that
the Negro member is not permitted to pay a larger
premium or to secure more insurance— whereas the
White member not only begins with twice as much in
17
surance, but has certain options or privileges to take
a great deal more.
For example, every White member between the ages
of 16 and 50 has the right to subscribe to an addi
tional amount of life insurance in the sum of $2000.00;
and the further right to have his wife and each of
his children subscribe additionally for the sum of
$2000.00 life insurance.
In addition, any White member of the union who
is in war service, is entitled to certain war protec
tion upon the payment of certain additional pre
miums.
“ A r t ic le X I I , Sec. 6. Every insured member of
the Internationa] Brotherhood, in good standing,
who is in good health and shall have conformed
to the requirements of the International Broth
erhood and who shall have attained the age of
sixteen (16) years and under fifty (50) years,
and may desire additional insurance other than
that provided in Sections 1, 3 and 4 of this
Article, not exceeding Two Thousand ($2,000.00)
Dollars * * *
“ A r t i c le X I I , Sec. 7. The Wives and Children
of the members of the International Brother
hood, who are in good health and who shall con
form to the requirements of the International
Brotherhood and have reached the age of five (5)
years and are under the age of forty (40) years,
shall be entitled to make application for the
benefits of the insurance extended to the m e m
bers of the International Brotherhood as pro
vided for in Section One (1) of this Article. A p
plication for such insurance must be made on
18
forms provided by the International Brother
hood for that purpose, and when such applica
tion has been accepted and approved, such in
sured person or persons shall be entitled to such
insurance upon the premium payment of the
sum of not more than one dollar and thirty
cents ($1.30) per month per thousand for each
such Wife or Child, payable quarterly, semi
annually or annually in advance; such insurance
to each such Wife or Child not to exceed the sum
of Two Thousand ($2,000.00) Dollars * * *
“ A r t i c le X I I , Sec. 9. In the event that any
member of the International Brotherhood shall
desire to continue in force any benefits herein
provided while he is engaged in the military or
naval service, in time of war, or when he shall
suffer loss caused directly or indirectly from such
service; or from any work in connection with
actual warfare, riot or insurrection, or from any
act incident thereto, either on land or water; or
from operation in aeronautics or submarine oper
ations; or from police duty in any police organi
zation, other than that occurring simultaneously
with and in consequence of bodily injury, shall
be entitled to said benefits upon the payment to
the International Brotherhood of the additional
premium required to be paid under the Ameri
can Experience Mortality Table for such addi
tional risk.” (General Constitution.)
None of these rights or privileges for additional
insurance are granted to the Negro members of
Negro locals.
19
2. E xclu s ion o f N egro A p p re n tice s .
There is no provision w hatever in the A uxiliary
by-laws for apprentices. This means p lainly that there
cannot be any colored apprentices.
On the other hand, definite provision is made for
the admission and training of apprentices in the
White locals.
“ A r t i c le V I , Sec. 4. That not more than one
Apprentice be allowed to every fifteen (15) M e
chanics and that all firms employing such A p
prentices shall draw up an agreement satisfac
tory to the International Brotherhood, blank to
be furnished by the International Brotherhood.
“* * * Any person engaging himself as an Appren
tice must be between the ages of sixteen and forty
years, and must be given an opportunity to learn
all branches of the combined trade of the Inter
national Brotherhood. He must take out an ap
prenticeship card in the Subordinate (i.e. White)
Lodge of his locality after six months’ time has
been served as an Apprentice. Apprentices sent
out with Boilermakers and Helpers from time to
time, to erect new and repair work, must be m e m
bers of the Subordinate (i.e. White) Lodge in
that City. Should the Apprentice be ineligible to
membership, owing to tender years or inexpe
rience, then such Apprentice shall remain in the
shop until eligible to membership. Seventy-five
per cent of the Apprentices shall be taken from
the ranks of the Helpers, local conditions to gov
ern, providing such Helper has actually worked
two years in the service of the company to which
he is to serve as an Apprentice, and providing
20
such Helper is a member in good standing in a
Subordinate (i.e. White) Lodge of the Inter
national Brotherhood * * *” (General Constitu
tion.)
Since it is contemplated that many— if not most—
of the mechanics will serve an apprenticeship after
having served as helpers— and since these appren
tices must be White— it is obvious that the plan is
definite and effective to prevent any advancement in
status of colored helpers.
3. P e n a l t ie s f o r M iscon du ct-In tox ica tion .
A special provision has been set up in the Auxiliary
by-laws to punish the offense of intoxication or creat
ing a disturbance— as it relates to Negroes.
There is no similar or analogous section as it re
lates to White members.
“ A r t i c le X I V , Sec. 19. Any member of this
International Brotherhood entering the Lodge
room in a state of intoxication or creating any
disturbance shall be requested to leave the room,
and if orders are not complied with shall be re
moved and said member shall be fined not to ex
ceed the sum of Twenty-five ($25.00) Dollars.”
(Auxiliary By-Laws.)
21
4. A g e a t W h ic h M em bers m a y be A d m it te d .
White members may be admitted between the ages
of 16 and 70 years.
“ A r t ic le V I , Sec. 1. An applicant for m e m
bership must be a male citizen of some civilized
country between the ages of sixteen (16) and
seventy (70) years * * *” (General Constitution.)
Negro members may be admitted to the Auxiliary
locals between the ages of 16 and 60.
“ A r t ic le V I I , Sec. 1. An applicant for m e m
bership must be a colored male citizen of some
civilized country, between the ages of sixteen
(16) and sixty (60) years * * *” (Auxiliary By-
Laws.)
22
Appendix B
The convention of the Brotherhood, held in Kansas
City, Missouri, January 31— February 9, 1944,
adopted the following resolution (P ro c ee d in g s— pages
295 to 300) :
“Therefore, Your Committee recommends con
tinuation of the Auxiliary Lodge system, as now
constituted, with the following revisions:
First: That members of the Auxiliary Local
Lodges will be permitted to elect delegates who
will be seated in future Conventions of this In
ternationa] Brotherhood, with full voting au
thority and all of the privileges accredited dele
gates ;
Second: Auxiliary Lodges may file application
for affiliation with Metal Trades Councils and
District Lodges;
Third: The Business Agent of supervising
Subordinate Lodges shall attend all meetings of
the Auxiliary Lodges. Where no Business Agent
is maintained the President of the Supervising
Lodge shall attend the meetings of the Auxiliary
Lodge.
Fourth: It shall be the duty of the officers of
the Auxiliary Lodges and the Supervising Lodge
to refuse to admit to Auxiliary Lodge meetings,
any individual who is not a member in good
standing of the Auxiliary Lodge, Officers of the
Supervising Lodge or International Officers. Ex
ception to this section may only be authorized by
the Supervising Lodge.
23
Fifth: The incoming International President
and Executive Council are directed to define in
the Constitutions of both the Subordinate and
Auxiliary Lodges, the duties of supervising
lodges.
Sixth: The incoming International President
and the Executive Council are hereby directed
to request a conference with the proper officials
of the Occidental Insurance Company for the
purpose of negotiating and securing, if possible,
revisions to the present insurance contract,
whereby Negro members may receive insurance
benefits identical with those of all other members.
Therefore, be it resolved, That the recommen
dations contained in this resolution be accorded
immediate attention by the International Presi
dent and the Executive Council, in order that
all of the provisions herein contained may be
come effective on September 1, 1944.”
Attention is directed, first of all, to the fact that
none of these proposed changes will become effective
prior to September 1, 1944.
Secondly, no fundamental change has taken place
with the possible exception of equalization of insur
ance features and even that is only a remote proba
bility. Although the auxiliary lodges will be permitted
representation in national conventions and in metal
trades councils, the auxiliary lodges are still under
the control of the so-called “supervisory White
lodges”. The result is that the White lodges are in a
position to control the selection of Negro delegates
24
to conventions and councils and thus to stifle any at
tempt made by the Negro auxiliaries to elect persons
who will really fight for their rights. Moreover, the
basic economic restrictions against auxiliary m e m
bers have been retained; thus Negroes are still vir
tually barred from promotion, from becoming inden
tured apprentices and from any effective means of
protecting their rights. In short, the whole setup is
still admirably suited towards securing the early and
prompt dismissal of Negroes and thus preserving the
jobs for Whites as soon as the labor shortage is re
placed by a labor surplus.
25
Appendix C
New Jersey Supreme Court
State of New Jersey
Ex rel. Gladys Hedgepeth,
Relator,
vs.
Board of Education of the City of Trenton,
Respondent.
And
State of New Jersey
Ex rel. Berline Williams,
Relator,
vs.
Board of Education of the City of Trenton,
Respondent.
On Rule to Show Cause why a writ of mandamus
should not issue
Before Justice Porter.
For the relators, Robert Queen,
For the respondent, Henry M. Hartmann.
Porter, J.
The relators are of the colored race. They reside
in Trenton. Their children are pupils in the Trenton
public schools. At the end of the school year of 1943
both children were graduated from the elementary
school in their school district and were promoted to
the junior high school grade. The policy of the re
26
spondent is and lias been for a number of years to
send all children of the colored race irrespective of
the place of residence in the city to a central junior
high school to which only colored children are ad
mitted. It is called the Lincoln School. The white chil
dren are sent to other schools within the district of
their residence. It is only in this one school in the
city where the colored children are segregated from
the other children. Were they not colored, the school
to which the relators’ children would be assigned is
nearer to their homes than is the Lincoln School. All
junior high schools of the city seem to have equal
academic standing.
The sole question presented is the legal right of
the respondent to refuse these children admission in
the school nearest their residences. The only reason
the admission sought is denied them is because of
their race. W e think it clear that the children are
unlawfully discriminated against. It is unlawful for
boards of education to exclude children from any
public school on the ground that they are of the
Negro race. R. S. 18:14-2; Pierce v. Union District
School Trustees, 46 N.J.L. 76, aff’d 47 N.J.L. 348;
Patterson v. Board of Education, Trenton, 11 N.J.
Misc. 179, aff’d 112 N.J.L. 99.
The writ will be allowed.
January 31, 1944
27
Appendix D
W endell W illkie teas asked by six o f the nation’s
leading newspapers to write a series o f articles on
ideas he fe lt should be incorporated in the Republican
platform . The series, the second of which is published
today, has been made available to all newspapers
through the press services.
— San Francisco Chronicle, June 13, 1944.
By W E N D E L L W I L L K I E
Under the leadership of Lineoln, in the fires of civil
war, the Republican Party’s struggle to save the Union
was transposed into the great moral issue of human
freedom. By the emancipation proclamation and by
amendments to the Federal Constitution, under Re
publican leadership, the Negro was legally and con
stitutionally guaranteed exactly the same rights as
every other citizen of the United States.
It is therefore strange that Republicans, year after
year, yield to the old states rights argument and a
narrow interpretation of Federal power to prevent the
passage of Federal statutes which constitute the only
practical method by which the Negro’s rights, can be
assured him.
One of these basic rights is the right to vote. A n
other is the right to live free of the haunting fear and
the too frequent actuality of mob violence. The first
can be guaranteed, under the circum stances ex istin g
today, only by a Federal statute elim inating state poll
28
taxes and other arbitrary prohibitions against the
voting franchise; the other only by a Federal statute
m aking the crime of lynching triable in Federal courts
and punishable by Federal law.
The Republican party in its platform and in the
declarations of its candidates should commit itself
unequivocably and specifically to Federal anti-poll
tax and anti-lynching statutes.
No Longer Fooled
The Negro people of the United States, understand,
ably refuse to accept the technical arguments against
cloture in the debates on anti-poll tax and anti-lynch
ing bills, or even the sincere claims of constitutional
ism which prevent such just measures from becoming
law. And the very fact that the Republican party was
the instrumentality through which the Negroes were
given freedom makes them the more resentful that it
should join in acts which prevent them from obtaining
the substance of freedom.
Nor w ill th ey be satisfied by the counsels of patience
and the assurances of k indly men th at progress has
been made; that eventually , through fair treatm ent
and co-operative effort, N egroes w ill in some distant
day obtain the rights w hich the C onstitution itse lf
guarantees to them.
No one who has not stopped seeing, and thinking
could have missed the events of the past few years
that have drawn together 13,000,000 Americans— one-
tenth of the nation— into a determined purposeful
unit.
29
H um iliated
In that time Negroes have known the bitter humilia
tion of seeing their men and women, eager to serve in
the nation’s aimed forces, excluded from some
branches of the service, or often relegated to menial
jobs in the branches to which they have been admitted.
They have w itnessed the ugly and tragic results of
race hatred and riots. They have known the brief
security of good jobs at decent w ages w hile their help
w as needed to make the tools of war, only to be filled
w ith deep anxiety for fear that in the readjustm ents
of peace th ey w ell be shuffled off into unem ploym ent
and poverty.
At the same time, from the battlefields of Italy to
the gold-star homes here in America, they have
learned that there is nothing more democratic than a
bullet or a splinter of steel. They want now to sec
some political democracy as well.
Millions of them distrust the Democratic Party,
which for years has deprived the Negro of his right to
vote in Atlanta while seeking his vote as the friend of
his race in Harlem. But in view of the economic ad
vances and social gains which have come to Negroes
during the past 12 years, they will not leave that party
for vague assurances of future action expressed in
pious platitudes, or for a 1944 version of the states
rights doctrine, or even for procedures which, however
legally correct, in practical effect indefinitely post
pone correction of sore and desperate abuses.
30
K now ing Leaders
Negro leaders are alert and educated and sophisti
cated. They know that their problem is a part of the
world-wide struggle for human freedom. For their
people they ask only their rights— rights to which
they are entitled. The Constitution does not provide
for first and second-class citizens.
They are entitled to the same opportunity to acquire
an education— an education of the same quality— as
th at given to other citizens.
They should receive the same per capita expenditure
of public moneys for schooling, housing, health and
hospitalization as is allotted to other citizens.
The right to work must equal that of any citizen and
their reward of any other citizen for the same job.
Their economic opportunity should not be lim ited
by their color. And last, th ey should have the right of
every citizen to fight for his country in any branch of
her armed services w ithout discrim ination and w ith
equality of opportunity.
These are merely rights that the Negro of our com
munities is entitled to share with other citizens.
Republicans should see to it that he gets them. For all
these reasonable demands are consistent with the very
principles upon which the Republican Party was
founded. All of them are a part of the freedom for
which men of every color and race are dying. Our
adoption or rejection of them will be the test of our
sincerity and of our moral leadership in the eyes of
hundreds of millions all over the world.
31
Appendix E
State of Rhode Island and Providence Plantations
County of Providence, Sc.
Superior Court
Equity No. 17,760
Gerald R. Hill et al.
vs.
International Brotherhood of Boiler
makers, Iron Shipbuilders and Help
ers of America et al.
Heard before Mr. Justice Churchill at Providence,
January 3, 4, 5, 6 and 7, 1943.
D ecision
This is an application for a temporary injunction
and in handling the matter, I am following the doc
trine laid down in McGee v. Local 682, decided by
our Supreme Court February 3, 1943, 30 2d Atlantic,
461. In that case our Court said, “The issuance of a
preliminary injunction rests with the sound discre
tion of the Superior Court, and the exercise of that
discretion will not be interfered with by the Supreme
Court”.
3 2
Considerable argument was made by counsel for
the respondents on the matter of the abstract right
of a union to exclude on any ground they deem suf
ficient, applicants for membership. That raises a very
interesting question, but fortunately I am not obliged
to decide a question as broad as that, because as I
see it, the situation here is different. These complain
ants were already members when the alleged discrimi
natory practices were conducted.
That leads me up to the first question in the case:
Are these complainants in a position to raise the
questions involved in this case?
The respondents say they are not. They take the
position that the complainants are not members of
Local 308, and therefore were not entitled to take
part in the election of December 14, 1943.
The complainants take the position they are m e m
bers and have been discriminated against.
The facts on which the several claims rest are not
substantially in dispute.
When I speak of a complainant, I am excluding
Mr. Andrade and Mr. Hutton, because they were
excluded from voting on grounds other than race,
so to avoid confusion in the case, I am not including
them with the other complainants, but I am not rul
ing they are not entitled to relief.
These complainants applied to the officers of the
International here in Rhode Island for admission to
Union 308— I think that is the right designation—
33
and I find they were led to believe by such officers
they were so applying, that the applicants were not
told by any officer or anyone, either of the Interna
tional or Local 308, that they could not join said
Local 308 with all the rights and privileges of such
membership, or there was any difference between such
members and members of the so-called “auxiliary”.
They paid the regular initiation fees and other dues
required of regular members of Local 308, and such
dues were received by officers of the Local in Provi
dence, and complainants received receipts for such
dues, believing such receipts entitled them to all
rights and privileges of the Local. Such complain
ants were sworn in as members of Local 308. They
took the same oath administered to other members
of Local 308, and while Messrs. Buckley, Hovey and
Hagan, who possessed supervisory powers, were pres
ent, and complainants voted in meetings of Local
308 and took part in meetings of Local 308 prior
to September, 1943, without any objection by such
supervisory members, and with the acquiescence of
such persons.
I find complainants continued to pay such dues,
which were received by officers of the International.
On December 14, 1943, their dues were paid, and
they were otherwise members. Complainants believed,
and had reasonable ground to believe, by the afore
said acts and conduct of officers of Local 308, that
they were members in good standing of Local 308, and
they were by such acts and conduct lulled into
security. The pink application card was so worded
3 4
and printed that it did not give notice to complain
ants they were applying for membership in other
than 308, or to a body in which there were discrimi
natory rules and provisions. That the purpose and
effect of the so-called “auxiliary” was to segregate
Negroes and persons of no other race and color, in
a position less favorable in substantial matters than
the position enjoyed by other members of Local 308.
That the first time that these complainants had
reason to believe they were not entitled to all the
rights and privileges of members of Local 308, was
at the time of the election, December 14, 1943.
On these findings of fact, I rule that the complain
ants are entitled on the proof before me, as far as
a preliminary injunction is concerned, to all rights
and privileges of members of Local 308.
I think that is sufficient to dispose of the matter
as far as the preliminary injunction is concerned,
but for the sake of the record, I ought to take up
another point which revolves around discriminatory
action and conduct at the election of December 14,
1943. I might say the bill deals with other discrimi
natory action as authorized by the by-laws and con
stitution than the question of voting. But I am not
going into those other discriminatory practices now.
Now, as to discrimination in voting; the facts may
be briefly disposed of. On the morning of election of
officers, December 14, 1943, under the instructions of
officers of the International, who were present and
who took part in the meeting, some time after nine
35
o’clock, all the ballots of Negroes who offered to vote,
were marked with a “C”, meaning it w~as a ballot
offered to be cast by a Negro. Such ballots were placed
in envelopes and on the envelopes were marked, “Pro
tested”. No other ballots were marked, “Protested”,
and with the letter “C” on the ballot, There were
other ballots which were protested, but they were
protested for other reasons. There were about sev
enty-three Negro ballots marked “C ” and put in an
envelope. Those ballots were not counted, on the in
struction of Mr. Buckley who represented the Inter
national, on the ground Negroes could not vote at
Local 308, or as it was put by a witness, members of
the “auxiliary” could not vote. It amounts to the
same thing. What may have taken place in regard
to protested ballots on the ground of identification
or other defects is not germane here at this time.
It is clear beyond doubt that such acts at this
election of December 14, 1943, in respect to ballots
offered by Negro voters, under instructions of the
officials of the International, constitute a discrimina
tion based on race and color, and the question is, is
this discrimination illegal, or to put it more closely,
has there been sufficient evidence thereof to warrant
m y holding the bill on a preliminary injunction?
The Fourteenth Amendment of the United States
Constitution declares: “No state shall deprive any
person of life, liberty or property without due process
of law; nor deny to any person within its jurisdic
tion the equal protection of the laws”.
36
W e have a provision of similar import in the con
stitution of our own state, and there is also a stat
ute of this state which makes it a criminal offense
not to provide equal accommodations in hotels, on
carriers, and so forth.
None of those provisions apply directly to this
case. That is true, and I a m very well aware of it,
but such provisions in the constitutions and statutes
with regard to equal treatment of all persons, no
matter what their race or color, is evidence of a pro
found public policy of the United States and this
state.
There is one other matter; that is the Presidential
Proclamation, Executive Order 9346, a part of which
reads: (attached to Complaint as Exhibit).
I am doubtful if this proclamation is binding upon
me as a matter of law. It may be, but I haven’t had
time to run down the statutes on which it is based.
But it is a declaration of the public policy of the
United States.
I rule that the conduct at the election of Decem
ber 14, 1943, and that the by-laws and constitution
of the so-called “auxiliary”, in so far as they dis
criminate between members of the colored race,
Negroes, and persons of all other races, as compared
with the by-laws and constitution of the Brother
hood, are illegal and void.
It has been argued that this bill in equity is pre
mature. I think the argument rests on a misconcep
tion of the purpose of the bill. The purpose of the
37
bill is not fundamentally a contested election bill.
The complainants are not endeavoring to have one
or the other set of candidates elected. The bill is
brought because of discriminatory acts indulged in.
That being so, they have a right to bring the bill
to prevent such actions taking place in the future.
The next question is that complainants have not
prosecuted their appeal within the order. I am very
doubtful if complainants have an appeal, as this
has been explained to me by experts in the rules, but
I will waive that, and will rule that the matter of
appeal within the order is ruled by Fales v. Musi
cians Protective Union, 40 R.I., 34. I have previ
ously ruled that the practice and conduct at the elec
tion, and certain by-laws and constitution of the
so-called “auxiliary” are illegal and void. For that
reason no appeal is necessary within the Order.
One other point I shall notice, and that is the or
ganization of the auxiliary. I am not going to make
any definite ruling on that point, except this: There
is no auxiliary union in Rhode Island. That is un
contested. There is no election of officers here in such
auxiliary, no officers, no union of even the slightest
description. H o w much of an organization they have
in Kansas City I am not going to rule on. Apparently
officers of the International act as officers of the so-
called auxiliary, if they haven’t got a union organized
elsewhere. But I am in doubt on that point. I am also
in grave doubt as to whether or not the so-called
auxiliary union, if it has any more than a paper
existence, as embodied in the so-called by-laws and
38
constitution, if such by-laws and constitution were
ever validly adopted by the International Brother
hood, A.F. of L. I will let it stand at that. But I
will say this: The practice under the so-called by
laws of the auxiliary, or sending the funds of the per
sons who are members of the auxiliary to Kansas
City, is unreasonable and illegal.
I think what I have said disposes of the case. I
am going to grant the preliminary injunction, the
details of which can be settled on application to me.
These unions have important functions to perform.
They are a necessary part of our economic structure
as at present constituted. I would like the injunc
tion to interfere as little as possible with the func
tions of the union.
I rule that colored members of the so-called auxili
ary are members of Local 308, and that their dues
ought to be kept in Rhode Island.
S F . N o . 17015
In the Supreme Court of the
State of California
J oseph J ames, individually, and in a rep
resentative capacity for and on behalf
of 1,000 other Negro workers similarly
situated,
Plaintiff and Respondent,
vs.
MARrNSHrp Corporation (a corporation),
L ocal U nion No. 6 of I nternation
al Brotherhood of Boilermakers,
I ron S hipbuilders and H elpers of
A merica , E d R ainbow , as Business
Agent of said Local 6, and E. M edley,
as President of said Local 6,
Defendants and Appellants.
A PPE A L FROM T H E SUPE RIO R COURT OF MARIN COUNTY.
HON. EDW A R D I. BUTLER, JUDGE.
Brief Amicus Curiae in Support of Respondents Sub
mitted by Andrew Blakeney, John William Mills,
Jr., Lonas McAdoo Preuitt, Jordan Kyser, An-
tonuia Williams and Eri Jacobs, Individually and
in a Representative Capacity for and on Behalf
of 5,000 Negro Workers Similarly Situated.
Katz, Gallagher & M argolis,
By B en M argolis,
J ohn T. M cT ernan ,
111 West Seventh Street, Los Angeles 14,
Attorneys for Amicus Curiae.
Parker & Company, Law Printers, Los Angeles. Phone TR. 5206.
TOPICAL INDEX.
PAGE
I.
Introduction ........................................................................................... 1
II.
The restrictions and conditions placed upon the employment of
plaintiffs are contrary to the established public policy of the
state of California............................................................................. 2
A. Contracts which unreasonably restrain the following of a
particular calling or occupation are contrary to the public
policy of the state of California.............................................. 2
B. Where the closed shop is coupled with unreasonable condi
tions for admission or unreasonable refusals to admit indi
viduals into membership, such unreasonable restrictions
are unlawful because of the improper restriction upon the
exercise of a calling or trade................................................... 3
C. The closed shop is valid in California and does not con
stitute an unreasonable restraint upon the exercise of a
calling or occupation where it is used for objects having
reasonable relevance to labor conditions and to protect the
economic interests of union members. However, where
the closed shop is used for purposes having no reasonable
relation to the working conditions, bargaining power, or
economic interests of the union members it is illegal as
an improper restraint upon the right to exercise a trade or
calling .......................................................................................... 8
D. Summary ................................................................................... 11
III.
The acts charged against defendants should be enjoined because
they violate the public policy of the United States......................... 12
A. The courts of California will give relief against other
wise valid contracts which violate the public policy of the
United States ............................................................................. 12
u.
B. The public policy of the United States is expressed by
section 7 of the National Labor Relations Act declaring
that employees should be free to designate representatives
of their own choosing. Although the National Labor Re
lations Act provides no relief against actions of the kind
complained of here, the state courts should nevertheless
enforce the public policy of the United States...................... 13
C. Executive Order 9346 providing that discrimination in re
gard to hire, tenure, terms or conditions of employment or
of union membership because of race, creed, color or na
tional origin is inimical to the interests of the United
States sets forth the public policy of the United States.— 14
D. All of the agreements between the defendant employers
and various government agencies contain the provision
that there shall be no discrimination because of race or
color, thereby effectively stating the public policy of the
United States with regard to the execution of said con
tracts ............................................................................................ 15
E. The acts of defendants are illegal and contrary to fed
eral public policy, as set forth in the “Kick Back Act,”
40 U. S. C. A. 276(b), because they constitute an in
ducement of the Negro workers affected to give up part
of their compensation by intimidation and threat of pro
curing dismissal; the money is collected not for union
PAGE
membership but solely for the right to work...................... 16
IV.
Defendant labor unions may be required to accept plaintiffs into
full and regular membership........................................................... 21
V.
The employers are proper parties defendant................................. 25
VI.
Plaintiffs have no available administrative remedies which must
be exhausted prior to resort to the courts...................................... 26
VII.
Conclusion .............................................................................................. 28
TABLE OF AUTHORITIES CITED.
Cases. page
Abelleira v. District Court of Appeal, 17 Cal. (2d) 280............... 27
Cameron v. International Alliance, 176 Atl. 692.............................. 6
Carrol v. Local 269, I. B. E. W„ 31 Atl. (2d) 223................. 6, 22
Connors v. Connolly (Sup. Ct. of Errors, Conn.), 86 Atl. 600.. 4
Coombs v. Burk, 40 Cal. App. 8......................................................... 3
Curran v. Galen, 152 N. Y. 33, 46 N. E. 297................................ 3
Dorrington v. Manning (Supreme Ct. of Pa.), 4 Atl. (2d) 886 7
Exchange Bakery & Restaurant, Inc. v. Rifkin, 245 N. Y. 260,
157 N. E. 130...................................... 1........................................... 5
Great Western Distillery Products v. J. A. Wathen, 10 Cal.
(2d) 442 ............................................. ............................................. 9
Grovey v. Townsend, 295 U. S. 45, 79 L. Ed. 1292, 55 S. Ct.
622 ..................................................................................................21, 22
Herald v. Glendale Lodge, 46 Cal. App. 325................................ 19
Hopkins v. MacCulloch, 35 Cal. App. (2d) 442.............................. 20
International Workers v. Landowitz, 20 Cal. (2d) 418.................. 20
Lucke v. Clothing Cutters & T. Assembly (Ct. of Appeals of
Md., 1893), 26 Atl. 505................................................................... 7
McAllister v. Drapeau, 14 Cal. (2d) 102....................................12, 15
McKay v. Auto S. L. Union No. 1067, 16 Cal. (2d) 311_8, 9, 10
Miller v. Municipal Court, 22 Cal. (2d) 818.................................. 12
Overland Publishing Co. v. H. S. Crocker Co. Inc., 193 Cal.
109 ..................................................................................................... 8
People v. Lim, 18 Cal. (2d) 872........................................................ 20
People v. Monterey Fish Products Co., 195 Cal. 548.................. 20
People v. Seccombe, 103 Cal. App. 306.......................................... 19
People v. Stafford Packing Co., 193 Cal. 719.................................... 20
People v. Trucker Lumber Co., 116 Cal. 397.................................. 20
Perrin v. Mountain View Mausoleum Assn., 206 Cal. 669........... 20
Sapiro v. Frisbie, 93 Cal. App. 299.................................................. 19
Schwartz v. Laundry and Linen Supply Drivers’ Union, Local
187, 339 Pa. 353, 14 Atl. (2d) 438.............................................. 5
Shinsky v. O’Neil, 232 Mass. 99, 121 N. E. 790.............................. 7
Smith v. Allwright, 88 L. Ed. 701.............................................. 14, 22
State v. Ehrlich, 65 W. Va. 700..................................................... 19
Truax v. Raich, 60 L. Ed. 131, 39 U. S. 33.................................. 11
United States v. Fuller, 51 Fed. Supp. 951................................. 18
United States v. Laudini, 134 F. (2d) 847; reversed on other
grounds and affirmed on this point; 88 L. Ed. 217, 64 S. Ct.
315, 320 U. S. 543..................................................................... 17, 18
United States v. Lombard, 54 Fed. Supp. 537............................. 18
United States v. McGraw, 47 Fed. Supp. 927............................. 17
United States v. White, 88 L. Ed. 1149............................................ 22
United Tailors v. Amalgamated Workers, 26 Ohio N. P. (N.
S.) 439 ................................................................................................ 10
Wilson v. Newspapers Union, 197 Atl. 720.................................... 6
Woods v. Kern County Mut. etc. Assn., 34 Cal. App. (2d)
468 .............................................................. ....................................12, 15
Wright v. Ryder, 36 Cal. 342............................................................. 2
Yick Wo v. Hopkins, 30 L. Ed. 221, 118 U. S. 356........................ 25
M iscellaneous.
4 American Jurisprudence 459, Associations and Clubs, par. 7- 24
4 American Jurisprudence 461........................................................... 24
6 California Jurisprudence 136.............................. ;......................... 3
1 Corpus Juris, Sec. 1003................................................................... 25
1 Corpus Juris, Sec. 1004................................................................... 25
Executive Order 9346............................................................... 14, 26, 27
iv.
PAGE
High, 1 Inj. (3rd Ed.), pars. 20 and 20a.......................................... 20
5 Pom. Eq. Jur. (2d Ed.), par. 1890.............................................. 20
Story’s Equity Jurisprudence (14th Ed.), Vol. 1, p. 5.................... 29
Statutes.
Civil Code, Sec. 1667.......................................................................... 9
Civil Code, Sec. 1673........................................................................... 2
Civil Code, Sec. 1674........................<.................................................. 2
Civil Code, Sec. 1675........................................................................... 2
National Labor Relations Act, Sec. 7................................................ 13
National Labor Relations Act, Sec. 8................................................ 13
40 United States Code Annotated 276(b)...................................... 16
V.
PAGE
S. F. No. 17,015.
In the Supreme Court of the
State of California
J oseph J ames, individually, and in a rep
resentative capacity for and on behalf
of 1,000 other Negro workers similarly
situated,
Plaintiff and Respondent,
vs.
M a r in s h ip Corporation (a corporation),
L ocal U nion No. 6 of I nternation
al Brotherhood of Boilerm akers,
I ron S hipbuilders and H elpers of
A merica , E d R ainbow , as Business
Agent of said Local 6, and E. M edley,
as President of said Local 6,
Defendants and Appellants.
Brief A m icus Curiae in Support of Respondents Sub
m itted by Andrew Blakeney, John W illiam M ills,
J r . , Lonas M cAdoo Preuitt, Jordan Kyser, An-
tonuia W illiam s and Eri Jacobs, Individually and
in a Representative Capacity for and on Behalf
of 5,000 N egro W orkers Sim ilarly Situated.
1.
Introduction.
This brief amicus curiae in support of respondent is
filed, pursuant to permission of Court, on behalf of ap-
proximately five thousand Negroes in the Los Angeles
area who are parties plaintiff to litigation substantially
identical to that pending on appeal herein.
The respondents in this case have established that under
present conditions public policy supports fully the relief
granted by the Court below. It is the purpose of this
brief to establish that such relief is required on the basis
of fundamental established precedents.
II.
The R estrictions and Conditions Placed U pon the
Em ploym ent of Plaintiffs Are Contrary to the
Established Public Policy of the State of Cali
fornia.
A. Contracts Which Unreasonably Restrain the Following
of a Particular Calling or Occupation Are Contrary to
the Public Policy of the State of California.
Public policy relating to restraint of trade originated in
English jurisprudence with the early development of trade
and industry. As conditions changed, the nature of the
public policy likewise changed. This evolving doctrine of
public policy became a part of established common law
principles in the United States and in the State of Cali
fornia.
The rule as first established was that all contracts in
restraint of trade were invalid. Contracts which inter
fered with the following of a particular trade or calling
fell within the scope of this prohibition. The rule against
such restraints was gradually modified to permit the im
position by contract of reasonable restraints founded upon
valuable consideration. ( Wright v. Ryder, 36 Cal. 342,
357.) Sections 1673, 1674 and 1675 of the Civil Code
have in part codified this concept of public policy springing
out of the comon law.
The question then arises: What is the test of reason
ableness? This answer is set forth at 6 Cal. Jur. 136:
“To sustain the restraint, it must be found to be
reasonable both with respect to the public and to the
parties, and to be limited to what is fairly necessary,
under the circumstances of the particular case, for the
protection of the covenantee. Public welfare is first
considered, and if it be not involved, and the restraint
upon one party is not greater than protection to the
other party requires, the contract may be sustained.
It has been said that no better test can be applied to
the question than by considering whether the restraint
is such only as to afford a fair protection to the in
terest of the party in favor of whom it is given, and
not so large as to interfere with the interests of the
public.”
Cf. Coombs v. Burk, 40 Cal. App. 8, 10.
B. Where the Closed Shop Is Coupled With Unreasonable
Conditions for Admission or Unreasonable Refusals to
Admit Individuals Into Membership, Such Unreason
able Restrictions Are Unlawful Because of the Improper
Restriction Upon the Exercise of a Calling or Trade.
Based upon the principles of public policy applicable to
restraint of trade, the early cases in the United States de
clared all closed shops invalid. In the case of Curran v.
Galen, 152 N. Y. 33, 46 N. E. 297 (1897), the highest
court of that state in declaring void a closed shop contract
said:
“Public policy and the interests of society favor the
utmost freedom in the citizen to pursue his lawful
trade or calling, and if the purpose of an organization
4
or combination of workingmen be to hamper, or to re
strict, that freedom, and, through contracts or
arrangements with employers, to coerce other work
ingmen to become members of the organization and to
come under its rules and conditions, under the penalty
of the loss of their position, and of deprivation of
employment, then that purpose seems clearly unlaw
ful and militates against the spirit of our government
and the nature of our institutions. The effectuation
of such a purpose would conflict with that principle of
public policy which prohibits monopolies and exclusive
privileges. It would tend to deprive the public of the
services of men in useful employments and capacities.
It would, to use the language of Mr. Justice Barrett
in People ex rel. Gill v. Smith, 5 N. Y. Cr. Rep. 509,
at p. 513, ‘impoverish and crush a critizen for no
reason connected in the slightest degree with the ad
vancement of wages, or the maintenance of the rate.’ ”
While the result reached in this case is no longer law
the case typifies the historic and still valid principle that a
closed shop contract imposing a restraint upon the exercise
of a calling is justified and lawful only when its purpose
and use are to advance the lawful economic objectives of
union organization.
The Court conceded the right of employees to combine
and to contract for purposes necessary to their own eco
nomic welfare, but declared the closed shop contract
illegal because in the court’s opinion it imposed a re
straint upon the right to pursue a lawful calling with no
economic justification therefore. Cf. Connors v. Connolly
(Sup. Ct. of Errors, Conn.), 86 Atl. 600 (1913).
The basic rule of public policy that unreasonable re
straints upon the right to pursue a lawful calling are void
— 5—
has never been changed. However, the viewpoint that the
closed shop as such is illegal because there is no economic
justification therefore no longer prevails. In 1927 the
New York Court of Appeals stated the modern rule in the
case of Exchange Bakery & Restaurant, Inc. v. Rifkin,
245 N. Y. 260, 157 N. E. 130, 132:
“The purpose of a labor union to improve the con
ditions under which its members do their work; to in
crease their wages; to assist them in other ways, may
justify what would otherwise be a wrong. So would
an effort to increase its numbers and to unionize an
entire trade or business. It may be as interested in
the wages of those not members, or in the conditions
under which they work as in its own members because
of the influence of one upon the other. All engaged
in a trade are affected by the prevailing rate of wages.
All, by the principle of collective bargaining. Eco
nomic organization today is not based on the single
shop. Unions believe that wages may be increased,
collective bargaining maintained only if union condi
tions prevail, not in some single factory, but generally.
That they may prevail, it may call a strike and picket
the premises of an employer with the intent of induc
ing him to employ only union labor.”
Notwithstanding the recognition of the validity of the
closed shop the courts continue to require that the resulting
restraint have a reasonable connection with the lawful
economic objectives of union organization.
In Schwarts v. Laundry and Linen Supply Drivers’
Union, Local 187, 339 Pa. 353, 14 Atl. (2d) 438 (1940),
a closed shop contract, involving a class of laundry wagon
drivers known as “bob-tails,” was utilized for the purposes
of controlling prices, apportionment of customers to speci-
fic dealers and similar monopolistic practices. In discuss
ing the validity of the closed shop contract and the
monopolistic purposes for which it was used, the Court
said:
“In so far as it is designed to restrict the ‘bob-tails’
in the operation of the trucks which they themselves
drive, and in their collection of laundry, to hours and
working conditions prescribed by the union and em
bodied in its agreement with the laundry companies,
the union has a legitimate interest in thus seeking to
protect the laundry employees against the lowering of
working standards on the part of those who them
selves, although in a different legal capacity, perform
to some extent the same kind of labor. So far, there
fore, as a ‘bob-tail,’ by becoming a member of the
union, would be bound by its reasonable rules as to
such matters, there would seem to be no valid objec
tion to this provision. But such membership cannot
be made the means of controlling the regulation by the
‘bob-tails’ of their own business enterprises in the
various aspects heretofore considered.”
A number of cases have followed the rule that a closed
shop coupled with unreasonable restrictions upon the right
to full union membership are contrary to public policy.
Cameron v. International Alliance, 176 Atl. 692;
Carrol v. Local 269 I. B. E. IV., 31 Atl. (2d) 223;
Wilson v. Newspapers Union, 197 Atl. 720.*
*These cases are cited in Respondent’s Brief.
The case of Dorrington v. Manning (Supreme Ct. of
Pa.), 4 Atl. (2d) 886, 890, involves an arbitrary refusal
to admit into union membership an employee working
under a closed shop agreement. The court held that the
employee had a right to follow his calling which was en
titled to protection as a property right, and that the arbi
trary denial of this right by refusing to admit the em
ployee into membership constituted an illegal invasion of
his property right. Thus the court recognized that a re
striction upon the right to pursue an occupation must be
reasonable or it contravenes public policy. Cf. Lucke v.
Clothing Cutters & T. Assembly (Ct. of Appeals of Md.,
1893), 26 Atl. 505; Shinsky v. O’Neil, 232 Mass. 99, 121
N. E. 790, which indicates that a closed shop contract
“would open itself to serious criticism if it refused to admit
to membership men qualified to perform work done by
members of the union in question.”
C. The Closed Shop Is Valid in California and Does Not
Constitute an Unreasonable Restraint Upon the Exer
cise of a Calling or Occupation Where It Is Used for
Objects Having Reasonable Relevance to Labor Condi
tions and to Protect the Economic Interests of Union
Members. However, Where the Closed Shop Is Used
for Purposes Having No Reasonable Relation to the
Working Conditions, Bargaining Power, or Economic
Interests of the Union Members It Is Illegal as an
Improper Restraint Upon the Right to Exercise a Trade
or Calling.
The rule that a contractual restriction upon the right to
work must be reasonable is recognized in the case of Mc
Kay v. Auto S. L. Union No. 1067, 16 Cal. (2d) 311, 319:
“The parties are entirely correct in their agreement
that, under the law as it has developed in recent
years, an intentional interference with the advan
tageous economic relations of others by the members
of labor organizations is not tortious unless vio
lence is used or the object sought to be accomplished
has no reasonable relevance to labor conditions.
Therefore, the issues in the present controversy in
clude only two questions: Whether the specific ac
tivities carried on by the defendants are peaceful,
and, further, whether there is any legal justification
for their conduct in view of the objects which they
seek to attain.” (Emphasis ours.)
The Court went on to distinguish Overland Publishing
Co. v. H. S. Crocker Co. Inc., 193 Cal. 109, a case in
which a closed shop contract was used to compel all em
ployers in a particular trade to join an employers’ asso-
— Si
tuation in violation of the Cartwright Act. The Court
held:
“The attempt to induce an employer to become a
member of an employers’ association is not reason
ably related to either the working conditions or the
bargaining power of the union members and was
plainly an unlawful object of concerted action on
their part.”
Thus in the very case that established the legality of
the closed shop in this state, it was clearly indicated that
its validity depended upon its utilization for a purpose
having “reasonable relevance to labor conditions.” Al
though the concept of what is reasonable has changed
considerably, it is still the public policy of California that
contracts, including closed shop contracts, which unrea
sonably restrain the right to work or to follow a particu
lar calling are void.
Cf. Great Western Distillery Products v. J. A.
Wathen, 10 Cal. (2d) 442, 448.
See also Restatement of Torts, paragraphs 810 and
788.
Note should also be taken of C. C. 1667, which pro
vides :
“That is not lawful which is:
1. Contrary to an express provision of law;
2. Contrary to the policy of express law, though
not expressly prohibited;”
In the McKay case, this Court pointed out those eco
nomic factors which justified, i.e., established the “rea-
— 10—
sonable relevance to labor conditions” of, a closed union
shop. The Court said:
“The interest of the defendant unions in the pres
ent controversy is direct and obvious. The closed
union shop is an important means of maintaining the
combined bargaining power of the workers. More
over, advantages secured through collective action
redound to the benefit of all employees whether they
are members of the union or not, and members may
resent nonmembers sharing in the benefits without
liability for the obligations. Hence a closed shop
policy is of vital importance in maintaining not only
the bargaining power but also the membership of
trade unions.”
It should hardly require argument to support the
proposition that exclusion from union membership on the
basis of race does not fall within the justification set
forth in the McKay case. Cf. United Tailors v. Amal
gamated Workers, 26 Ohio N. P. (N. S.) 439.
It has been argued that the plaintiffs in this case are
not denied the right to work and that therefore authorities
dealing with that right are not in point. Defendants do
assert the authority to condition the right of plaintiffs to
work upon their membership in a Negro Auxiliary. The
right to impose arbitrary conditions upon employment is
the equivalent of the power to deny employment alto
gether. If defendants may impose any conditions they
see fit upon the right to work, they can accomplish by in
direction what they are not allowed to do directly.
— 11—
The real question is whether the restrictive regulations
imposed upon the right of plaintiffs to work are arbitrary
or whether they have a “reasonable relevance to labor
conditions.” To that question only one answer is possi
ble. The placing of Negroes in a second class employ
ment status because of the color of their skins has no
reasonable relation to the economic needs of the union and
its members.
Although not directly applicable the case of Truax v.
Raich, 60 L. Ed. 131, 135, 39 U. S. 33, does clearly set
forth unreasonableness of discrimination based upon
race or color:
“It requires no argument to show that the right
to work for a living in the common occupations of
the community is of the very essence of the personal
freedom and opportunity that it was the purpose of
the Amendment to secure (citing cases). If this
could be refused solely upon the ground of race or
nationality, the prohibition of the denial to any per
son of the equal protection of the laws would be a
barren form of words.”
D. Summary.
The public policy of California prohibits unreasonable
restraints upon trade and upon the exercise of one’s occu
pation or calling. The closed shop when used to ad
vance the legitimate economic needs of union’s members
is clearly valid. When it is used for an illegal purpose
such as to deny Negroes the right to work except upon
the condition that they surrender to white employees the
exclusive right to bargain collectively for them, such use
of the closed shop contract is against public policy.
12—
III.
The A cts Charged A gainst Defendants Should Be
Enjoined Because They V iolate the Public Policy
of the U nited States.
A. The Courts of California W ill Give Relief Against
Otherwise Valid Contracts Which Violate the Public
Policy of the United States.
The public policy of the United States as expressed by
its laws, regulations and authorized acts of agencies of
the United States are enforceable by the courts of this
state. The case of Miller v. Municipal Court, 22 Cal.
(2d) 818, contains an exhaustive review of the law re
lating to jurisdiction of state courts to enforce federal
laws. In that case this court concluded that “. . . Con
gress in the lawful exercise of a constitutional power, by
its statutes declares the policy for both the people and the
states.”
In the case of McAllister v. Drapeau, 14 Cal.( (2d) 102,
it was held that the securing of a second lien by a mort
gage creditor obtaining payment from the Home Owners’
Loan Corporation violated the public policy expressed in
an act of Congress and in the rules and regulations of
the Home Owners’ Loan Corporation, and that there
fore the lien was void and unenforceable. The lien in
question was otherwise valid. The Court did apply the
public policy of the United States in reaching its decision.
Semble Woods v. Kern County Mut. etc. Assn.,
34 Cal. App. (2d) 468.
— 13 —
B. The Public Policy of the United States Is Expressed
by Section 7 of the National Labor Relations Act Declar
ing That Employees Should Be Free to Designate Rep
resentatives of Their Own Choosing. Although the
National Labor Relations Act Provides No Relief
Against Actions of the Kind Complained of Here, the
State Courts Should Nevertheless Enforce the Public
Policy of the United States.
Section 7 of the National Labor Relations Act pro
vides :
“Employees shall have the right to self-organiza
tion, to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mu
tual aid or protection.”
It is clear that the public policy thus declared has as
its objective the protection of the right of employees to
designate their own collective bargaining agents. Section
8 of the Act affords protection against the action of em
ployers who by their own acts interfere with this right.
No machinery is provided to protect employees against
the arbitrary action of unions.
In this case the defendant unions by discriminatory
means are depriving Negroes of the right to bargain
collectively through agents of their own choosing. The
employer defendant is not primarily responsible for the
acts of discrimination. Rather those acts are made pos
sible because of the acquiescence of the employer in the
use of the closed shop contract to effectuate the arbitrary
deprivation of the Negro employees’ rights by the defend
ant unions.
The policy declared in Section 7 of the Act is being
violated basically by the unions against whom the Act
— 14—
affords no remedy. Nevertheless the public policy has
been expressed and the state courts have the power and
the duty to prevent its frustration.
The Constitution of the United States protects against
arbitrary invasion the right of all citizens to participate
in the selection of their political representatives; the pub
lic policy of the United States as expressed in Section 7
of the National Labor Relations Act extends protection
to the right of all employees to participate in the selection
of their collective bargaining representatives. No private
organization should be permitted to deprive either citizens
or employees of these basic rights. Cf. Smith v. All-
wright, 88 L. Ed. 701 (Adv. Op.).
C. Executive Order 9346 Providing That Discrimination in
Regard to Hire, Tenure, Terms or Conditions of Em
ployment or of Union Membership Because of Race,
Creed, Color or National Origin Is Inimical to the
Interests of the United States Sets Forth the Public
Policy of the United States.
Executive Order 9346 is set forth and referred to at
length in respondent’s brief. This order made under the
war powers of the President declares the policy of the
United States with regard to employment in war indus
tries. That policy is directly applicable here.
It is to be noted that the policy deals with discrimina
tion with regard to union membership as well as with
relation to terms and conditions of employment. The
discrimination with regard to union membership is pat
ent. Upon analysis, the discrimination with regard to
conditions of employment becomes equally clear. The
term “conditions of employment” is a broad one—covering
all of the rules and regulations relating to the employment
- 1 5 -
relationship. Collective bargaining or its absence — are
conditions of employment. The manner of handling griev
ances and the right to have shop stewards are likewise
conditions of employment. Job security and the condi
tions under which advancement may be achieved are con
ditions of employment.
In all of these respects there is discrimination against
plaintiffs. They are not allowed to participate in collec
tive bargaining or to select their collective bargaining
agents. They have no means of handling their grievances.
Their security of employment is subject to the whim of the
union and their right to promotions rests upon its benefi
cence. In each of these regards the white worker enjoys
superior conditions.
That the public policy embodied in Executive Order
9346 is being violated is not subject to doubt.
D. All of the Agreements Between the Defendant Em
ployers and Various Government Agencies Contain the
Provision That There Shall Be No Discrimination Be
cause of Race or Color, Thereby Effectively Stating the
Public Policy of the United States With Regard to the
Execution of Said Contracts.
The Federal government has the power to contract and
through its contracts it may state its public policy. The
policy against racial discrimination is a condition of each
of the agreements between the defendant employers and
the various government agencies. The state courts will
declare void those contracts or portions thereof which vio
late this public policy.
Cf. McAllister v. Drapeau, 14 Cal. (2d) 102, and
Woods v. Kern County Mut. etc. Assn., 34 Cal.
App. (2d) 468, supra.
— 16—
Here there is a direct conflict between the provisions of
the agreements between the government and the employer
on the one hand and the closed shop contract as applied
to Negroes on the other. Both cannot be maintained
simultaneously. This Court must determine which of
them shall prevail. It is submitted that the public policy
as declared in the government contracts is superior to and
must prevail over the private agreement between the
union and the employer.
E. The Acts of Defendants Are Illegal and Contrary to
Federal Public Policy, as Set Forth in the “Kick Back
Act,” 40 U. S. C. A. 276(b), Because They Constitute an
Inducement of the Negro Workers Affected to Give Up
Part of Their Compensation by Intimidation and Threat
of Procuring Dismissal; the Money Is Collected Not for
Union Membership but Solely for the Right to Work.
The “Kick Back Act,” 40 U. S. C. A. 276(b), pro
vides :
“Whoever shall induce any person employed in
the construction, prosecution, or completion of any
public building, public work, or building or work
financed in whole or in part by loans or grants from
the United States, or in the repair thereof to give up
any part of the compensation to which he is entitled
under his contract of employment, by force, intimi
dation, threat of procuring dismissal from such em
ployment, or by any other manner whatsoever, shall
be fined not more than $5,000, or imprisoned not
more than five years, or both.”
The purpose of this provision is to prevent the collec
tion of monies for the privilege of working on federally
financed work.
JJ. S. v. Laudini, 134 F. (2d) 847, 850; reversed
on other grounds and affirmed on this point;
88 L. Ed. 217, 218, 64 S. Ct. 315, 320 U. S.
543.
The plaintiffs in this case are required to pay dues into
an organization which gives them no real benefits aside
from the fact that it allows them to work. The auxiliary
is not a bona fide labor organization because it does not
perform the function of such an organization—that is
bargain collectively for its members. It is a device
through which the Boilermakers Union and its locals
control the affairs of Negro employees and a cloak for
the collection of “dues” for the privilege of working.
At one time it was claimed that the “Kick-Back Act”
applied to employers only. It is now settled that it is
applicable to anyone in a position substantially to affect
the employees’ contract of employment and that it will
be utilized to prevent workmen from being preyed upon
by such persons.
U. S. v. McGraw, 47 Fed. Supp. 927, 928;
U. S .v . Laudini, 88 L. Ed. 217, 64 S. Ct. 315,
320 U. S. 543.
From this basic principle it follows that this law is
applicable to union officials who collect dues for the privi-
— 18 —
lege of working instead of for bona, fide union member
ship.
U. S. v. Fuller, 51 Fed. Supp. 951;
U. S. v. Lombard, 54 Fed. Supp. 537.
In the Fuller case, supra, there was an agreement that
only persons approved by the union would be allowed to
work. The union issued permits to work for which it
collected regular fees but did not allow workers to join
the union. The Court held that these facts were sufficient
to sustain an indictment under the Act.*
In the second of the cases cited above, U. S. v. Lom
bard, the facts are similar to those in the Fuller case. The
Court said that it was the arrangement whereby the em
ployers permitted the union to determine under what con
ditions employees, not permitted to join the union, should
work which brought the situation within the purview of
the “Kick-Back Act.”
Here the defendant employer takes the position that it
is concerned only with clearance from the union and that
it will not interest itself in the union status of the em
ployee. It is this position which permits the union de
fendants to collect money for the privilege of working as
distinguished from the collection of dues for bona fide
union membership required by the closed shop contract.
The question now arises: The “Kick-Back Act” being
a criminal statute, how is it applicable here? This Act
sets forth the public policy of the United States. Where
*It is interesting to note that the Court had to go to considerable
lengths to distinguish the case of U. S . v . L a u d in i, 134 F. (2d) 847, hold
ing that the Act did not apply to foremen. The L a u d in i case was subse
quently reversed at 88 L. Ed. 217, 64 S. Ct. 315, 320 U. S. 543, where
it was held that Act is applicable to foremen.
— 19—
a criminal statute states a public policy, private individ
uals sustaining injuries by reason of the violation of that
public policy may obtain relief in equity.
Herald v. Glendale Lodge, 46 Cal. App. 325.
“It is beyond controversy that equity will not in
terfere by injunction to prevent the mere violation
of law; but it is equally well settled that injunction
may issue to restrain the commission of acts which
are violative of public policy, which create a nuisance
or assail the rights of property, although such acts
are crimes and punishable as such. (Citing cases.)”
Cf. Sapiro v. Frisbie, 93 Cal. App. 299, 304.
The Court went on to point out that the action in the
cited case was not against the infraction of the law, but
to prevent damage to the property rights of the plaintiff.
Plaintiffs do not seek to enforce a criminal statute
through equity proceedings, rather they seek to protect
private rights protected by the public policy of the United
States.
In People v. Seccombe, 103 Cal. App. 306, 314, the
Court gives the following apt quotation from State v.
Ehrlich, 65 W. Va. 700:
“It is not the criminality of the act that gives
jurisdiction in equity, but the deprivation of personal
and property rights interfered with, injured, de
stroyed or taken away by the unlawful act. For the
mere vindication of the criminal law and the enforce
ment of the public policy of the state, let it be founded
upon moral or other considerations, the legal remedy
by indictment and prosecution is fully adequate and
peculiarly appropriate.”
As is indicated above it is important to distinguish
between those cases in which an injunction is sought to
-20—
prevent the commission of a crime and those in which its
object is the protection of private property rights. A
court of equity will not take jurisdiction of the former,
it will of the latter.
High, 1 Inj. (3rd Ed.), Pars. 20 and 20a;
5 Pom. Eq. Jur. (2d Ed.), par. 1890.
Thus the state may not enjoin the operation of a gam
bling establishment upon the basis of a criminal statute,
no property rights being involved. (People v. Lim, 18
Cal. (2d) 872.) Where, however, the state has property
rights which are threatened by the violation of a penal
law injunctive relief is proper to protect the property
rights.
People v. Trucker Lumber Co., 116 Cal. 397;
People v. Stafford Packing Co., 193 Cal. 719;
People v. Monterey Fish Products Co., 195 Cal.
548.
In the case of International Workers v. Landowitz, 20
Cal. (2d) 418, it is held that a private individual may not
enjoin the violation of a penal statute relating to unfair
competition. It is significant that the decision in this case
did not find that there were private property rights for
which protection was sought by injunctive relief. It dis
cusses only the question of restraining “the violation of
a penal law.” The same is true of Perrin v. Mountain
View Mausoleum Assn., 206 Cal. 669. This distinguish
ing factor was recognized in the case of Hopkins v. Mac-
Culloch, 35 Cal. App. (2d) 442, 454 (hearing by Supreme
Court denied).
The violation of the public policy declared by the “Kick-
Back Act” interferes arbitrarily with the plaintiffs’ prop
erty right to work, i. e., to pursue their occupation as
boilermakers. Therefore, the injunction was properly
issued by the Court below.
— 2 1 —
IV.
Defendant Labor Unions May Be Required to Accept
Plaintiffs Into Full and Regular Membership.
The general rule is that a voluntary unincorporated
association is not required to accept into membership any
person for any reason. This rule is based upon the fact
that membership is created by contract and that the law
will not, require the making of a contract.
The relationship of membership being created by con
tract, it follows that the contract alone creates the mutual
rights and obligations between the members and the asso
ciation. Furthermore, the association cannot exercise any
power over non-members nor bind them by its acts. This
is so because the non-member has not contracted to be so
bound. Inasmuch as the association cannot bind the non
member by its acts, he cannot complain that he has no
voice in its affairs.
Above is set forth the rationale which supports the
general rule regarding admission into membership of a
voluntary association. However, there are situations in
which the reasoning does not apply, because of the powers
exercised by a voluntary association such as a labor union.
At one time the tendency of the courts was to disregard
the fact that some voluntary association exercised powers
and occupied a status far different from that of the tradi
tional association.
Thus in Grovey v. Townsend, 295 U. S. 45, 79 L. Ed.
1292, 55 S. Ct. 622, it was held that the Democratic Party
of Texas, a voluntary association, could bar Negroes from
voting in the primary elections, thereby effectively depriv
ing them of the right to participate in the selection of
their political representatives. Reality was rendered sub
servient to the fiction of a voluntary association.
- 22-
In Smith v. Allwright, 88 L. Ed. 701 (adv. opinion),
the Grovey case was overruled on the basis of the realities
of the situation. The Court recognized that even a volun
tary association might be enjoined from arbitrarily deny
ing membership, where such denial deprived individuals
of basic rights. A distinction was recognized between an
association which exercises powers arising only out of
contract and one which exercises powers conferred by the
state.
That a labor union falls within the latter classification
is recognized in the very recent case of United States v.
White, 88 L. Ed. 1149 (Adv. Op.). There it was held
that a labor union like a corporation could not claim the
privilege against self incrimination because
“The scope and nature of the economic activities of
incorporated and unincorporated organizations and
their representatives demand that the constitutional
power of the federal and state governments to regu
late these activities be correspondingly effective.”
The Court likewise gives weight to the fact that “Both
common law rules and legislative enactments have granted
many substantive rights to labor unions as separate func
tioning institutions.”
There is no magic in the word “unincorporated associa
tion” any more than there is in the words “closed shop.”
In each case it is necessary to look not only to forms and
to means but to powers and objectives. In the case of
Carroll v. Local 269 I. B. E. W 133 N. J. Eq. 144, 31
Atl. (2d) 223, the Court clearly stated this proposition:
“If the characterization of a labor union as a
voluntary association becomes in time a mere ana-
chonism, the mere word ‘voluntary’ will not likely
preserve the present state of the law.
— 2 3 —
“Again it is wise to foresee that a change in sur
rounding circumstances—such as the economic
strength of competing groups—may make the exist
ing law disjointed and an instrument of oppression
if strictly adhered to.
“It is the peculiar genius and strength of the com
mon law that no decision is stare decisis when it has
lost its usefulness in our social evolution; it is distin
guished, and, if times have sufficiently changed, over
ruled. Judicial opinions do not always preserve the
social statics of another generation.”
Today labor unions such as the defendant unions, by
virtue of the National Labor Relations Act, are the sole
collective bargaining representatives of employees in a
particular unit. Their actions determine conditions for
both members and non-members. There unions are not
voluntary associations whose rights are conferred by con
tract alone and they cannot be treated as such. If they
claim the right to represent these employees they are
claiming powers which carry with them correlative duties.
They should not be allowed on the one hand to exercise
the right to exclusive representation, including the right
to determine for plaintiffs the conditions under which
they may be employed and the conditions of employment,
while on the other denying to plaintiffs any voice in the
affairs of the union—that is any participation in the de
termination of those working conditions and conditions of
employment.
If they are allowed to deny such voice they will be per
mitted to defeat the very purpose of the law from which
their right to act as collective bargaining representatives
arose. Instead of protecting the individual by giving him
a voice in the determination of his own economic destiny
—24—
through collective bargaining, they are depriving him of
all participation in these matters recognized by the law
as vital to his welfare.
The unions are in no better position than political parties
which claim the privilege of selecting candidates for elec
tion, while denying to Negroes the right to participate in
the selection of those candidates. Instead of being denied
the right to select their political representatives, plaintiffs'
are being denied the right to select their collective bargain
ing representatives.
Moreover, this is not the ordinary situation where per
sons are wholly denied any connection with an association.
The defendant unions insist on collecting dues from plain
tiffs and arbitrarily discriminating against them in con
sideration of the dues. Plaintiffs are given a second class
status in the union by their affiliation with the auxiliary.
They are in the position of persons who having paid the
consideration for membership are given something less
than full membership on a wholly arbitrary basis. Dues
are collected under the terms of a closed shop contract
requiring union membership—not a payment of a fee to
the union—as a condition of employment. Thus, dues are
collected in return for membership—but the membership
is not granted. The defendant unions should be required
to deliver that which has been bought and paid for.
It is established that by-laws and regulations of volun
tary associations are illegal where they are unreasonably
contrary to public policy or in contravention of the law of
the land. (4 Amer. Jur. 459, Associations and Clubs, par-
7.) The rule is thus stated at 4 Am. Jur. 461:
“If, however, an association, or a majority of its
members, passes by-laws which are unreasonable or
contrary to law or public policy, and attempts to en
force them as against a dissenting or unwilling minor-
—25—
ity, such minority may undoubtedly, in a proper case,
appeal to the courts for relief against their enforce
ment.”
Both because the defendant unions may not arbitrarily^
deny full membership to those they claim to represent and
because the plaintiffs have been arbitrarily discriminated
against plaintiffs as members, the Court below properly
granted injunctive relief.
V.
The Em ployers Are Proper Parties Defendant.
The discrimination against plaintiffs could be accom
plished only by the joint action of defendant unions and
defendant employers; it could not be effected without the
companies agreeing to discharge and discharging Negroes
who refused to pay dues to the auxiliary union. The
employers, therefore, participated in bringing about the •
injury to plaintiffs. They are therefore proper parties,
and it is immaterial that they did not intend or desire that
the closed shop contract be used for any wrongful pur
poses.
1 Corpus Juris, Sec. 1003 and 1004.
The closed shop contract is, of course, perfectly legal.
If it is used for wrongful purposes, however, all those
whose actions contribute to such use may be enjoined.
Cf. Yick Wo v. Hopkins, 30 L. Ed. 221, 118 U. S. 356,
where a perfectly valid ordinance was arbitrarily applied.
Relief against the employer is necessary because a valid
contract is being used for an illegal purpose and that pur
pose could not be achieved without the participation of the
employer. If it refused to discharge Negroes for failure
to join the auxiliary, the closed shop contract could not
be used as a means of discriminating against Negroes.
— 26—
It is contended that the defendant employer would be
guilty of unfair labor practices if it refused to discharge
employees who refused to join the auxiliary, because such
refusal would constitute interference in the internal af-
t fairs of the union. That argument would be sound only
j/f if the defendant employer’s action was directed against
I legitimate union activities as distinguished from practices
* contrary to public policy.
If, for example, a union instructed all of its Negro
members that they would have to agree to commit acts of
sabotage as a condition of receiving clearance from the
union, would anyone contend that the employer would
commit an unfair labor practice by refusing to require
union clearance for Negroes as a condition of employ
ment? Here, too, the condition of clearance is contrary
| to law. Refusal to acquiesce and participate in an unlaw-
/ ful act cannot itself violate the law.
V I.
Plaintiffs H ave N o Available A dm inistrative Rem
edies W hich M ust Be Exhausted Prior to Resort
to the Courts.
It is argued by defendant employer that plaintiffs have
an administrative remedy before the Fair Employment
Practice Committee which must be exhausted prior to
resort to the courts. It does not appear that there is any
enforceable remedy available through the utilization of
this committee.
Executive Order 9346, creating the Fair Employment
Practice Committee, provides:
“The Committee shall receive and investigate com
plaints of discrimination forbidden by this Order. It
may conduct hearings, make findings of fact, and take
aPPropi*iate steps to obtain elimination of such dis
crim ination.”
The filing of a complaint by individuals results in noth-
ing more than an investigation. The parties are entitled
to no hearing-; rather the committee is free to conduct
hearings or not in its own discretion. Even if a hearing
is granted there is no specific relief which is required by
the directive order. Finally, if an order is made by the
committee the committee has absolutely no way of en
forcing it.
Administrative remedies must be exhausted—when pro
vision is made for hearings which are required by law
and which are followed by an order which can be enforced.
Thus in the case of Abelleira v. District Court of Appeal,
17 Cal. (2d) 280, 291, relied on by the defendant em
ployer, the Court said:
“The Unemployment Insurance Act, summarized
above, contains a complete administrative procedure,
with provision for one original determination and
two appeals, fulfilling every requisite of due process
of law. Until that administrative procedure has been
invoked and completed, there is nothing that the Dis
trict Court of Appeal or any other court may review;
it cannot interfere in the intermediate stages of the
proceeding.”
Furthermore, this proceeding is designed neither to
prevent the Fair Employment Practice Committee from
acting nor to enforce one of its orders. It is a proceeding
separate and independent of any procedure provided by
Executive Order 9346. The rights of the parties and
power of this Court to act do not depend upon-the Execu
tive Order. It has been relied on merely as one indication
— 2 8 —
of Federal public policy. The discrimination against
plaintiffs violates both the public policy of this state and
of the United States. This Court has the power to apply
and grant relief pursuant to those policies.
No question of exhaustion of administrative remedies
is involved.
V II.
Conclusion.
It is not necessary to go beyond established legal prin
ciples in order to sustain the injunction issued below. It
is required only that those principles be applied to a new
condition and situation in such a manner as to effectuate
rather than defeat the fundamental precepts upon which
they are based. Jurisprudence is not a dead and arbitrary
process. It is a growing living organism which must
constantly adjust itself to the conditions of the times.
In the interpretation and application of the law today
the world situation cannot be ignored. The fact that
racism is a principal weapon of our Fascist enemies and
that those who indulge in it—either wittingly or unwit
tingly—aid the enemy cannot be ignored. It is in this
light that established precedent must be analyzed and
applied.
It is peculiarly a court of equity which must adopt itself
to new situations in order that there may be no wrong
without a remedy:
“The ingenuity of man in devising new forms of
wrong cannot outstrip equity in its development. In
all situations and under all circumstances, whether
new or old, the principles of equity will point the way
to justice where legal remedies are infirm. Prece
dents will be a constant guide, but never a bar. Where
—29—
a new condition exists, and legal remedies afforded
are inadequate or none are afforded at all, the never
failing capacity of equity to adapt itself to all situa
tions will be found equal to the case, extending old
principles, if necessary, not adopting new ones, for
that purpose.”
Story’s Equity Jurisprudence (14th Ed.), Vol. 1,
p. 5.
Respectfully submitted,
Katz, Gallagher & Margolis,
By Ben Margolis,
John T. McT ernan ,
Attorneys for Amicus Curiae.
S. F. No. 17,015
In the Supreme Court
OF THE
State of California
J oseph J ames, individually, and in a repre
sentative capacity for and on behalf of
1,000 other Negro workers similarly
situated,
Plaintiff and Respondent,
vs.
M arins hip Corporation (a cor] (oration),
L ocal U nion No. 6 of I nternational
B rotherhood of B oilermakers, I ron
S hipbuilders and H elpers of A merica,
E d R ainbow , as Business Agent of said
Local 6, and E. Medley, as President of
said Local 6,
Defendants and Appellants.
._______________________________________________________ i
SUPPLEMENTAL BRIEF FOR RESPONDENT.
A ndersen & R esner,
George R. A ndersen,
H erbert R esner,
544 Market Street, San Francisco, California,
Attorneys for Respondent.
T hurgood Marshall,
G9 Fifth Avenue, New York City, New York,
Attorney for the National Association
for the Advancement of Colored
People,
Of Counsel.
P e r n a u -W a l s h .P r in t i n g Co., c ^ g g ^ S A N F h a n c is c o
Table of Authorities Cited
Cases Pages
Abelleira v. District Court of Appeal, 17 Cal. (2d) 280........ 14
Harris v. Geier, 112 N. J. Eq. 99, 164 Atl. 50....................... 6
Shinsky v. O’Neil, 232 Mass. 99, 121 N. E. 790....................... 6
Wills v. Local Union No. 106, Hotel, etc. Assn., 26 Ohio
Nisi Prius Reports (N.S.) 435................................................. 5
Wilson v. Newspaper & Mail Deliverers’ Union, 123 N. J.
Eq. 347, 197 Atl. 720................................................................. 4,14
Texts
Restatement of Torts (Section 810, p. 166)............................. 4
In the Supreme Court
OF THE
State of California
S. F. No. 17,015
J oseph J ames, individually, and in a repre
sentative capacity for and on behalf of
1,000 other Negro workers similarly
situated,
P la in tif f and R esp o n d en t,
vs.
M arinship Corporation (a corporation),
L ocal U nion No. 6 of I nternational
B rotherhood of B oilermakers, I ron
S hipbuilders and H elpers of A merica,
E d R ainbow , as Business Agent of said
Local 6, and E. Medley, as President of
said Local 6,
D e fen d a n ts and A p p e lla n ts .
SUPPLEMENTAL BRIEF FOR RESPONDENT.
At the argument, certain discussion occurred which
seems to us to highlight the issues in this case.
Justice Carter asked Mr. Padway, appearing as
am icu s cu riae on behalf of the American Federation
2
of Labor (but certainly as a protaganist for the
Boilermakers’ entire argument), whether the Boiler
makers’ contention that it could refuse admission to
any person or group for any or no reason as it saw
fit, and therefore could admit persons or classes to
membership or other status on any terms or condi
tions it prescribed, didn’t establish the union’s posi
tion to be that it could refuse membership to Jews or
give them a secondary status for that reason alone.
Mr. Padway, with remarkable frankness, answered
in effect, “Yes, but fortunately th a t isn’t th is case.”
In other words, “W e can discriminate against Jews
or Negroes because they are Jews or Negroes, but
fortunately we are discriminating against Negroes in
stead of Jews!”
Respondent has consistently contended that this is
what the Boilermakers’ position actually means, but
this was the first time we have heard such an ad
mission from any of its legal or other representatives.
They have admitted that their practices and position
are based on the doctrines of “Mein Kampf”. And
then they have the temerity to say that they are free
to continue such discriminatory and outrageous prac
tices without legal or moral interference, and that
public policy is not involved in their behavior! W e
cannot recall of ever having heard such shocking pro
nouncements from an American labor organization,
although we have heard similar mouthings from the
K u Klux Klan, the Knights of the White Camellia,
the Christian Front, the Silver Shirts, and other
fascist bands.
3
The Boilermakers say they can discriminate against
Jews because they are Jews, but they say “happily
we are not doing that”. What causes them to believe
that they can discriminate against Negroes without
intereference is difficult for us to comprehend. Per
haps they feel that they have support for their actions
in some quarters, and without doubt there are ele
ments in the country who applaud such undemo
cratic behavior. Maybe the fault is that their think
ing has not progressed beyond pre-Civil W a r days,
while the march of history has brought with it real
equality to the Negro people in many respects. But
more likely, the Boilermakers’ actions in segregating
and discriminating against the Negroes is to enable
the union to wipe out the Negroes’ jobs and eco
nomic security when (as the Boilermakers think) jobs
will not be so plentiful as at present (the Boiler
makers foresee a post-war period of economic depres
sion and scarcity rather than of full production and
employment, a reactionary economic philosophy in
keeping with their discriminations against Negroes.)
Thus, the Boilermakers intend to have jobs for white
workers if not for black.
At any event, it is now clear by their own admission
that the Boilermakers discriminate against Negroes
(and the union does not deny the discriminations)
because of the color of their skin. And the union
contends that it can discriminate against any other
group or class because of race, color, religion, origin,
sex, or political belief. They say that they can do
the things which we are fighting this war to eradicate!
4
Can there be any doubt that the actions of the Boiler
makers are contrary to public policy?
Chief Justice Gibson, on several occasions, asked a
question which is basic to the problem: Is the action
of the Boilermakers of which the Negroes complain,
arbitrary and unreasonable? Obviously, from what
we have just noted, the actions of the union are both
arbitrary and unreasonable, and therefore subject
to restraint.
There is a discussion in the Restatement of Torts
(Section 810, p. 166) which is analogous to our case.
It is there stated,
“Workers who in concert procure the dismissal
of an employee because he is not a member of a
labor union satisfactory to the workers are * * *
liable to the employee if, but only if, he desires
to be a member of the labor union but member
ship is not open to him on reasonable terms.”
In other words, a union may properly seek to cause
the discharge of a non-union worker, but must make
membership available to that worker (provided he
is not a person who would act in ways detrimental to
the interests of the union) on reasonable terms. Ob
viously, color, race, or origin are not proper or reason
able bases on which to determine trade union m e m
bership or status.
The rule has been stated variously in several cases.
In W ilso n v. N e w sp a p e r & M a il D e liv e r e r s ’ U n io n ,
123 N. J. Eq. 347, 197 Atl. 720, the Court said,
0
“Labor unions may be divided into two groups.
In that which includes the defendant union, the
union is an exclusive club, run for the benefit of
its members and those whom it may elect. Its
policies are boldly selfish. The other group com
prises those unions which welcome to their ranks
all good union men in the same line of work who
will submit to the common discipline.
“Unions make closed shop agreements not to
create artificial shortages in the labor market
but in order that there shall be no d iscr im in a tio n
against union m e n ; all share the financial burden
of the union; and to insure a united stand in
negotiations with the employer.
* * * * * * *
“The question here is not one of prices or of
serving the public (the Court had been discussing
the regulations imposed on monopolies) but one
of employment, the right of a man to sell his own
labor. However, the principal is the s a m e : the
holders of the monopoly must not exercise their
power in an arbitrary and unreasonable manner
so as to bring injury to others.
“The union must admit all qualified persons to
membership or else surrender its monopoly.
Otherwise, such persons are by act of the union
deprived of the right to earn a livelihood.”
In W ills v . L oca l U n ion N o. 106, H o te l, etc. A ssn .,
26 Ohio N is i P r ia s Reports (N.S.) 435, the Court,
in a case where the union picketed to prevent an em
ployer from hiring Negro workers, stated the follow
ing:
6
“The ideal of all union efforts is and must be
the improvement of the social and economic con
ditions of those who work and the law seeks to
protect the union in the fair accomplishment of
such ideal.
“This boycott does not appeal to this Court of
Equity as conforming to this standard. In its
last analysis, it is a case of white men opposing
colored men. As this Court sees it, the only in
formation these defendants (union) could prop
erly and truthfully give the public about the plain
tiff (restaurant owner) is that he employs
colored people, and I do not believe these de
fendants care to advertise that fact as such.
“It does not appeal to this Court of Equity as
fair for these defendants to say to the public that
plaintiff is ‘unfair to organized labor’ under
the midisputed facts.”
The Court enjoined the defendant union from
picketing.
In H a r r is v . G e ier, 112 N. J. Eq. 99, 164 Atl. 50, 53,
the Court said,
“The policy of New Jersey approves the organi
zation of employees in trade associations which
are governed on democratic principles and m e m
bership in which is open, on reason ab le an d equal
te rm s, to all p erso n s of good character and skill
in their trade.” (Our emphasis.)
In S h in sk y v . O ’N e il, 232 Mass. 99, 121 N. E. 790,
the Court said,
“A union which has an agreement with an em
ployer providing that all the work shall be given
7
to members of the union or that a preference
shall be given members of the union * * * would
open itself to serious criticism if it refused to
admit to membership men qualified to perform
the work done by members of the union in ques
tion.”
These cases certainly demonstrate that where a
union has a closed shop and work is available (as in
our case) it should admit all qualified workers on
equal terms, and certainly it camiot create classes of
membership based on arbitrary and unreasonable
terms.
Justice Edmonds, on several occasions, inquired
how there could be actionable discrimination if the
Negro workers received wages and worked hours
equal to the white workers and if they had the bene
fits of the same union contract. There are several
answers to that query.
In the first place, the question of whether the
Negro workers have the benefits of the same contract
is not the issue in the case. Even if wages and hours
are equal, a union is without power to unreasonably
classify members and to charge them equal dues
wdiile according lesser union privileges and rights
to one group based on the fact of race and color alone
(as the cases cited above show.) Such action on the
part of a union is as destructive of property rights
(the right to earn a livelihood) as an attempt to
discriminate without reason in the matter of wages
and working conditions.
8
In other words, to say that a union has the power
to fix as a condition precedent to a person’s working
the acceptance by that person of discriminatory prac
tices based on the color of his skin, which any self-
respecting person would naturally refuse (and accept
only when compelled to by economic necessity), is
to say that the union can refuse work to all who
refuse to be discriminated against. This kind of dis
crimination is just as real and in some respects more
damaging of human morale than unequal wages or
hours. If the union can compel the Negro to accept
discrimination before he can obtain employment, the
union can compel the Catholic, the Methodist, the
Presbyterian, and the Christian Scientist to accept
discrimination based on his religion before having
work, and can compel those of Irish, Scotch, Nor
wegian, Italian, or Armenian ancestry to accept dis
crimination before they can have work. Can it be
contended that such discriminations are less real,
less damaging, and less actionable legally than dis
criminations in the matter of wages and hours'?
Secondly, the union in this case asserts that it is
the collective bargaining agent for a ll the workers,
white and black. Such a contention contemplates
that all members will be equal. Admittedly, under
enlightened doctrines of collective bargaining (which
even the Boilermakers and their attorneys in this
case have been known to espouse on occasion), a union
which purports to bargain for workers must respond
to the wishes of all those workers as expressed in
democratic fashion. H o w can the union deny a voice
9
or vote in the matter of collective bargaining to
Negro workers because of the color of their skin,
and then claim to represent these workers? All of
a union’s rights (and therefore those of its members)
spring from its collective bargaining efforts. The
denial to any portion of a union’s membership, or
to persons whom it claims to represent and whom it
charges dues equal to those who have voice and vote,
of the right to participate in collective bargaining is
to deny those persons the right to fix the hours, wages
and conditions under which they will work. Is not
such a denial as real as discrimination in the matter
of wages and hours? (In this case, the Boilermakers
never gave the Negroes, or other workers for that
matter, the opportunity to vote to determine whether
the Boilermakers would represent them. The con
tract was made between the company and the union
without consulting the workers at Marinship, white
or black.)
Third, the white members of the Boilermakers
Union have business agents and grievance and shop
committees which are denied to the Negroes, and
Negro auxiliary. The white business agents and com
mittees are supposed to act for the Negroes, but the
Negroes have no voice in their selection, no power
to recall or discipline them, and no way to compel
these agents and committees to act for them. The
reason the Negroes have no business agents or shop
or grievance committees is because they are black.
In other words, such right to representation is denied
the black worker. Thus, where a Negro worker has
10
a grievance, as for example, not receiving the proper
amount of wages he claims, or where he is not up
graded as he believes he should be, or where he is
compelled to work under conditions which he be
lieves are wrong, he has no way to obtain redress.
If the white business agent or shop or grievance com
mittee refuses to act for him, there is nothing the
Negro worker can do but accept the situation. It is
apparent, that where one has to depend for relief on
another who may act or not at his pleasure that the
former has no real representation. The fact that
these white business agents and committees may act
as they see tit, means that they can refuse to act.
That is like the power of the censor, who, having the
power of censorship, has the right to prohibit all ex
pression. (Compare cases on freedom of expression,
Respondent’s Opening Brief, pp. 42-43.) Thus, in
the very matter of discrimination on the job con
cerning which Justice Edmonds inquired, we find
existence of it in this case.
Fourth, this Honorable Court speaking through
Justice Edmonds in the M c K a y case, said that the
effort by a union to obtain a closed shop was legal
and justified “intentional interference with the ad
vantageous economic relations of others by the m e m
bers of labor organizations” unless “the object sought
to be accomplished has no reasonable relevance to
labor conditions.” In other words, the reason for
a union’s existence is to obtain economic security for
its members, and the closed shop is a necessary and
legitimate means to obtain that result. It is axio-
11
matic that those who seek the benefits of a union’s
efforts should share in its burdens. This case is
neither an attack on the closed shop nor an effort
to be relieved of the burdens of trade union member
ship.
The Negro workers ask for equal union member
ship in order to protect the closed shop, and they
offer willingly, to pay dues and support the union,
but with membership on terms and conditions equal
with white workers. The union’s denial of the
Negroes’ request causes any breakdown of the closed
shop contract that may exist, and the union is thus in
no position to complain of a situation its derelictions
have created. The union cannot rely upon the doc
trine of the M c K a y case for the simple reason that
discrimination against Negro workers have no reason
able relation labor conditions, and in fact, just the
opposite is true. The language and spirit of the
M c K a y case supports respondent’s position in this
case. A union exists not only to obtain wages, hours
and working conditions for its members, but to en
fo rce conditions once obtained. A union, under the
guise of obtaining such conditions for all persons
claimed subject to its jurisdiction, cannot enforce
those conditions for some of its members and not for
another group it claims to represent, nor can it con
tend that the mere o b ta in in g of conditions for a group
of workers justifies discriminations against them
based on race and color. Discriminations in m e m
bership based on race have no “reasonable relevance
to labor conditions”. The closed shop or applied
12
to the Negroes in this case is certainly void, as held
by Judge Butler, under the rule of the M c K a y case.
The remaining query of the argument was that of
Justice Traynor. Respondent contended that the
Boilermakers’ position that it could segregate and
discriminate against Negroes meant it could deprive
them of work, Judge Traynor asked whether that
didn’t indicate that the actionable damage would
occur at such time as work was denied to Negroes.
The answer to that question is that the Boilermakers
presently charge the Negroes dues equal to white
workers, but do not represent them, as previously
indicated. It is a case of existing taxation without
representation. That is a present, continuing, and
actionable wrong. The fact that the Boilermakers’
present discriminatory practices against Negroes
possess the inherent probability of future and addi
tional wrongs against Negroes (and other classes
and groups, based on religion, nationality, origin,
etc.) merely serves to demonstrate further the enor
mity of the evil practices of which we complain, and
is the kind of threatened wrong which equity well
enjoin.
Marinship contended at the argument that the
actions complained of, if wrong, were the union’s
doings and not its, and that the respondent failed
to first avail himself of his administrative remedy
(the F E P C ) and therefore had no remedy in court.
In the first place, the company is a party to the dis
criminatory practices because it knows why the dis
charge of Negroes is demanded by the union, and
13
when the company discharges a Negro it becomes a
party to the wrong.
The contract between the union and the company
upon which the company justifies its action is cer
tainly secondary and subject to the policy of the
United States declared in the F E P C Presidential
Order, and as expressed in the contract which the
company itself holds with the United States. Further
more, an injunction against the company is vital to
give effect to the injunction against the union, and
if the company feels that it has done no wrong, then
it should not object to an injunction which merely
has for its purpose the realization of the public policy
of the state and nation, particularly in time of war,
a policy declared in the company’s own contract with
the United States.
However, when the company raises the point that
respondent has not exhausted his administrative
remedy we may question how anxious the company
is to effectuate the policy of the government, and we
may still further question whether the discrimina
tory practices are those of the union alone. H o w
ever, the company’s contention in this regard is ut
terly without merit. There is no administrative
remedy to exhaust. Respondent and other Negroes
similarly situated possess no right to have the F E P C
entertain their complaint; the F E P C may conduct
hearings or not as it determines; and if it does make
findings it has no power to enforce them other than as
public opinion is an enforcing agent. In other words,
14
the F E P C is not the kind of an administrative
agency which either can or does give the relief con
templated by such cases as A b e lle ira v . D is tr ic t C ou rt
o f A p p e a l, 17 Cal. (2d) 280. This case is not one
under the F E P C order, and that order does not serve
as the basis for this action. It is relied on merely
as a declaration of public policy. Proceedings under
the F E P C and at equity in the state Court to obtain
the relief here sought are exclusive of each other.
They are separate and independent proceedings, and
one does not depend on the other. It is apparent
that there is no administrative remedy for respond
ent to exhaust, and that he was entitled to bring this
action in the state Court in the first instance.
Mr. Janigian’s argument offered nothing different
from what was contained in his brief, and we be
lieve that argument already has been sufficiently
answered. He relied principally on cases like the
G reen w ood and M a ye r cases. Insofar as they are
relevant, the comment of the Court in the W ilso n
case, supra, is appropriate:
“It is the peculiar genius and strength of the
common law that no decision is stare decisis
when it has lost its usefulness in our social evo
lution; it is distinguished, and if times have
sufficiently changed, overruled. Judicial opin
ions do not always preserve the social statics of
another generation.”
W e believe that in viewing the case as a whole,
and from a review of the various briefs, arguments,
15
and discussion, it must be evident that the order of
Judge Butler was correct in both law and justice and
should be affirmed.
Dated San Francisco, California,
August 30,1944.
Respectfully submitted,
A ndersen & R esner,
George R. A ndersen,
H erbert R esner,
Attorneys for Respondent.
T hurgood M arshall,
Attorney for the National Association
for the Advancement of Colored
People,
Of Counsel.
#
S . F. No. 17,127
In the Supreme Court
OF THE
State of California
W ilbert W illiams and .Tim Y ates, etc.,
et al.,
P la in tif fs and A p p e lla n ts ,
vs.
I nternational B rotherhood of B oiler-
mailers, I ron S hipbuilders and H elpers
of A merica, et al.,
D e fen d a n ts and R esp o n d en ts .
APPELLANTS’ OPENING BRIEF.
Appeal from the Judgment of the Superior Court
of the State of California, in and for the
City and County of San Francisco.
Honorable Peter J. Mullins, Judge.
A ndersen & R esner,
George R. A ndersen,
H erbert R esner,
544 Market Street, San Francisco 4, California,
A tto r n e y s fo r A p p e lla n ts .
P e e .v a d -W a i.s h F e in t i n g C o . , ' an F r a n c is c o
Subject Index
Questions presented ..
I. Page
.................................................................... 1
Statement of the ease.
n .
................................................................. 2
Argument .....................
III.
.................................................................... 3
Conclusion .....................
IV.
.................................................................... 6
Table of Authorities Cited
James v. Marinship Corporation, 25 A. C. 631
Pages
1,3,4, 5,6
S. F. No. 17,127
In the Supreme Court
OF THE
State of California
W ilbert W illiams and J im Y ates, etc.,
et al.,
Plaintiffs and Appellants,
vs.
I nternational B rotherhood of B oiler
makers, I ron S hipbuilders and H elpers
of A merica, et al.,
Defendants and Respondents.
APPELLANTS’ OPENING BRIEF.
Appeal from the Judgment of the Superior Court
of the State of California, in and for the
City and County of San Francisco.
Honorable Peter J. Mullins, Judge.
I.
QUESTIONS PRESENTED.
The questions presented in this case are identical to
those presented in the case of James v. Marinship Cor
poration, 25 A. C. 631 (Dec. 30, 1944) :
1. May a labor union possessing a closed shop
agreement with an employer arbitrarily and unreason-
2
ably exclude from membership persons of the Negro
race for that reason alone?
2. Can such a labor organization require members
of the Negro race, as a prerequisite of employment, to
join an auxiliary union, which collects the same dues
and fees as the parent body, but provides lesser priv
ileges and rights, and is in fact a segregated and dis
criminated against body on the basis of the color of
its members ?
3. Does a complaint charging the above facts state
sufficient facts to constitute a cause of action for in
junctive relief against the union ;and employer in
question ?
4. Does a court of equity err in failing to issue a
preliminary injunction against the union and employer
upon the basis of such a charge?
II .
STATEMENT OF THE CASE.
This was a representative action for injunctive
relief brought by the Negro plaintiffs against the In
ternational Brotherhood of Boilermakers, Iron Ship
builders and Helpers of America, and Locals 9 (ship-
fitters for the entire Bay area) and 513 (boilermakers
and welders employed at the various Richmond ship
yards), and against the Permanente Metals Corpora
tion (operators of Richmond 'Yards 1 and 2) and
Kaiser Company, Inc. (operators of Richmond Yard
3). All of these defendants appeared, and filed de
murrers to the complaint, and affidavits in opposi
tion to a preliminary injunction.
3
The Negro plaintiffs had sought an injunction to
continue their employment at the yards in question
without paying monies to or joining the auxiliary
unions of the Boilermakers, Local A-33 being the
auxiliary to Local 9, and Local A-36 being the aux
iliary to Local 513. They sought admission to the
regular Boilermakers unions on terms and conditions
equal with white workers. They sought an injunction
against the shipyards to enjoin their discharge for
non-payment of dues to or membership in the aux
iliary unions.
The complaint charges the same kind of discrim
inatory practices which were enumerated in the com
plaint in J a m es v . M a rin sh ip C o rp o ra tio n , and sum
marized in this Court’s opinion in that case.
A temporary restraining order was issued by the
Superior Court in and for the City and County of
San Francisco on May 9, 1944. (Tr. p. 38.) The
matter came on for hearing on an order to show cause
and application for a preliminary injunction. The
demurrers of defendants were sustained without leave
to amend, and the order to show cause was discharged.
(Tr. pp. ''94a-94b.) Judgment was entered for de
fendants (Tr. p. 95) and this appeal followed. (Tr.
p. 98.)
I I I .
ARGUMENT.
The questions presented in this case have already
been resolved in the case of J a m es v . M a rin sh ip C o r
p o ra tio n , 25 A. C. 631.
4
W e have'here the identical situation presented in
that case. The union parties defendant are the same,
except here we have different locals of the same In
ternational for the reason that we have other ship
yards involved here and the union organization pro
vides different locals for different yards. Here, unlike
in the J a m es case, the International was served and
appeared.
The shipyards are the Kaiser interests operating
Richmond Yards 1, 2, and 3. A different Kaiser cor
poration operates Yard 4 and is not before the Court.
The plaintiffs are Negroes who are in the same
position as was the plaintiff in the J a m e s case. These
plaintiffs, and the other Negroes for whom these ac
tions were brought, are employees in the various Rich
mond yards working at trades under the jurisdiction
of the union defendants.
These defendants have refused to pay dues to or
acquire or retain membership in the auxiliary unions
set up by the Boilermakers. For their refusal, they
have either been discharged from, or threatened with
loss of their jobs at the defendant companies’ yards.
It was held in the J a m es case that a union might
not hold a closed shop, enjoy a labor monopoly, and at
the same time maintain an arbitrarily closed union.
The Court there held the union must give up one or
the other. The Court also held that it was arbitrary
for a labor organization to exclude Negroes from equal
membership because of their color.
It was held there that an injunction would issue
against such union practices, and that a complaint
5
stating such facts stated, a cause of action for in
junctive relief.
It was also held there that where an employer has
knowledge of such practices, it is liable to injunctive
restraint to make effective the injunctive relief against
the union.
That is the precise situation presented here.
The Court below rendered its decision before the
decision of this Court in the J a m es case, and there
fore was deciding an original question at the time.
The matter has now been decided, however, and the
judgment below should be reversed to bring this case
into accord with the J a m es case.
Several other factors are present that should be
directed to the Court’s attention. The Boilermakers
Union can still circumvent the Court’s decision in the
J a m es case by refusing to take the Negroes into equal
membership. That, in fact, has happened. Without
such membership Negroes cannot obtain employment
in the first instance since the unions do all the dis
patching for jobs.
The employers can and do refuse to employ Negroes
in the first instance, referring them to the unions.
W h e n the Negroes get to the union, the Boilermakers
require them to join the auxiliaries or refuse them job
clearances. Thus it is clear that the Boilermakers must
be compelled to admit Negroes to full and equal m e m
bership in order that Negroes have the same oppor
tunities for employment as white workers.
The fact of segregation must still be eliminated, be
cause it is nothing but a device to discriminate. In
6
fact, it is one of the basest forms of discrimination.
Only where all workers are members of the same union
on the same terms will it be possible to have real
economic equality and true trade union democracy.
Plaintiffs submit that not only should the judgment
be reversed, but this Court should go farther in this
case and implement what it obviously had in mind in
the J a m es case by requiring the Boilermakers to admit
the Negroes to membership in the regular locals and
thereby give them equal job rights.
IV .
CONCLUSION.
The judgment should be reversed, with directions
to the Court below to enter a preliminary injunction
admitting the Negroes to full and equal membership
in the regular Boilermakers locals.
Dated, San Francisco, California,
April 16,1945.
Respectfully submitted,
A ndersen & R esner,
George R. A ndersen,
H erbert R esner,
A tto r n e y s fo r A p p e lla n ts .
S. F. No. 17,109
R aymond F . T hompson, etc., et al.,
P la in tif f s and A p p e lla n ts ,
Moore D rydock Company (a corporation),
et al.,
D e fen d a n ts and R esp o n d en ts .
APPELLANTS’ OPENING BRIEF.
Appeal from the Judgment of the Superior Court of
the State of California, in and for the
County of Alameda.
Honorable Ezra W. Decoto, Judge.
A n dersen & R e sn e r ,
G-eorge R . A n d e r se n ,
H erbert R e sn e r ,
544 Market Street, San Francisco 4, California,
A tto r n e y s fo r A p p e lla n ts .
OF THE
State of California
vs.
PEHNAU-YTALBII PHIHTOfO CO ., SAM FRANCISCO
Subject Index
Questions presented ..
Page
I.
Statement of the case.
II.
Argument .....................
III.
Conclusion ...................
IV.
Table of Authorities Cited
Pages
•James v. Marinship Corporation, 25 A. C. 631 (Dec. 30,
! 944) ................................................................................................1, 2, 3, 4, 5
S. F. No. 17,109
In the Supreme Court
OF THE
State of California
R aymond F. T hompson, etc., et al.,
P laintiffs and Appellants,
vs.
Moore D rydock Company (a corporation),
et al.,
Defendants and Respondents.
APPELLANTS’ OPENING BRIEF.
Appeal from the Judgment of the Superior Court of
the State of California, in and for the
County of Alameda.
Honorable Ezra W. Decoto, Judge.
I.
QUESTIONS PRESENTED.
The substantive questions presented in this case are
identical to those presented in James v. M arinship
Corporation, 25 A. C. 631 (Dec. 30, 1944), although
the procedural questions are somewhat different.
The substantive questions are these:
1. May a labor union possessing a closed shop
agreement with an employer arbitrarily and unrea-
2
sonably exclude from membership persons of the
Negro race for that reason alone?
2. Can such a labor organization require members
of the Negro race, as a prerequisite of employment, to
join an auxiliary union, which collects the same dues
and fees as the parent body, but provides lesser privi
leges and rights, and is in fact a segregated and dis
criminated against body on the basis of the color of
its members?
The procedural questions are these:
1. Does a complaint charging facts, based on the
above situation, and the further fact that the employer
threatened to discharge such Negroes if they failed to
secure clearances from and become members in good
standing in such auxiliaries, state a cause of action
against the e m p lo y er for injunctive relief?
2. Does a court of equity err in sustaining without
leave to amend an e m p lo y e r ’s demurrer to a complaint
setting forth facts based on the above indicated
situation ?
3. Does a court of equity err in refusing to issue
a preliminary injunction against unions and employer
in such a situation, which injunction is sought to
prevent the discriminatory practices reviewed in
J a m es v . M a rin sh ip C o rp o ra tio n ?
II .
STATEMENT OF THE CASE.
This was a representative action for injunctive
relief brought by the Negro plaintiffs against the
3
International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, and Locals 9
(shipfitters for the entire Bay Area) and 39 (boiler
makers employed in various Alameda County yards,
including that of defendant Moore Drydock C o m
pany), and against the Moore Drydock Company, a
corporation, which operates shipyards in Alameda
Coimty. All of the union defendants appeared (except
the Internationa], which was not served) and filed
demurrers, and affidavits in opposition to the issuance
of a preliminary injunction. Moore Drydock Com
pany filed an answer, in the last paragraph of which
was a general demurrer. (Tr. p. 53.)
The auxiliaries involved are Local A-33 (Auxiliary
to Shipfitters Local 9) and Local A-26 (Auxiliary to
Boilermakers Local 39).
The trial Court sustained the demurrer of Moore
Drydock Company without leave to amend (Tr. p.
53-i) and judgment was entered for that defendant.
(Tr. p. 56.)
The trial Court overruled the demurrers of the
various union defendants (Tr. p. 53-i), but denied
the application for a preliminary injunction. (Tr. p.
53-i.)
This appeal followed from the order and judgment
in favor of the Moore Drydock Company, and from
the order refusing to issue a preliminary injunction.
(Tr. p. 57.)
The complaint in this case charged the same kind
of discriminatory practices alleged in the case of
J a m e s v . M a rin sh ip C o rp o ra tio n , and enumerated in
4
this Court’s decision in that case. The complaint
sought the same kind of relief granted by the trial
Court (Judge Butler) in the J a m es case.
III.
ARGUMENT.
Inasmuch as the substantive questions involved in
this case have already been resolved by this Court in
the case of J a m e s v . M a rin sh ip C o rp o ra tio n , appel
lants rely on the decision in that case in the instant
appeal. That decision answers both of the substantive
questions affirmatively. It was there held that a com
plaint framed as is the one in the instant case stated
a good cause of action against an employer because
injunctive relief against the employer was necessary
to make effective and implement the injunctive relief
admittedly allowable against the union. See J a m es
v. M a rin sh ip , supra, at page 651. Thus the first pro
cedural question stated above should be answered
affirmatively.
Was it error for the trial Court to refuse a pre
liminary injunction against the union? Concededly,
Appellate Courts will not usually interfere with a
trial Court’s refusal to issue a preliminary injunction
unless a clear abuse of discretion appears, or some
substantial wrong will occur. W e believe that both of
these factors appear in our case.
The position of the Negro plaintiffs is so charged
with vital public and social considerations demanding
a solution equitable to them, and the defendant
5
unions’ position is so untenable and anti-social that it
seems clear that an injunction should issue. Further
more, a preliminary injunction would have done little
more than preserve the status quo and kept in em
ployment Negroes who refused to join the auxiliaries,
until the case could be heard on the merits. In addi
tion, the boilermakers continuously have had it in
their- power to correct the situation, which they
have refused to do. Finally, it appears from the
Jan ies case that a preliminary injunction was proper,
and for the sake of uniformity and to give effect to
that decision (which is of statewide, if not nationwide
importance) outside of the limited facts of that case
a preliminary injunction should have issued to correct
the similar conditions here.
It seems quite inconsistent that the trial Court
should have denied the preliminary injunction against
the union while at the same time overruling their
demurrers. If, as the trial court found, a good cause
of action was stated against the union defendants, why
should a preliminary injunction be denied as against
them?
Appellants adopt the balance of the arguments made
in the brief in W illia m s v . In te rn a tio n a l B ro th erh o o d ,
etc., since like considerations are involved in both
cases. Mr. Janigian appears as counsel for certain
of the Boilermakers Unions in both cases, and appel
lants will have served copies of the briefs in that case
(as well as in the J a m es case) on other attorneys for
the unions and company in this case (that is, at
torneys who were not in the J a m es case).
6
IV .
CONCLUSION.
It is respectfully submitted that the judgment be
reversed.
Dated, San Francisco, California,
April 16,1945.
A ndersen & R esner,
George R. A ndersen,
H erbert R esner,
A ttorneys for Appellants.
D u e s e r v ic e a n d r e c e ip t o f a c o p y o f th e w i th in is h e r e b y a d m i t te d
this .day of April, 1945.
Attorneys for Respondents.
Received a copy of the within this____________ ___ day of April,
1945, for the Judge who tried the cause.
G. E. WADE, Clerk,
By.
Deputy Clerk.
r