Gingles v. Edmisten and Pugh v. Hunt Answer to Supplemental Complaint of Plaintiffs Alan v. Pugh; Defendants' Motion for Extension of Time; Order; Answer to Supplemental Complaint of Plaintiffs Alan v. Pugh

    IN  THE

(&mvt n! %  Inttefc States
October Term, 1944

No. 691

R ailw a y  M ail  A ssociation ,

against
Appellant,

E dward S. C obsi, as Industrial Commissioner of the State 
of New York, and N a t h a n ie l  L. G oldstein , as Attorney 
General of the State of New York.

O N  A P P E A L  FR O M  T H E  SU P R E M E  COURT OP T H E  STATE OP 
N E W  Y O R K .

MOTION AND BRIEF FOR THE NATIONAL ASSOCI­
ATION FOR THE ADVANCEMENT OF COLORED 

PEOPLE AS AMICUS CURIAE.
*-mr-------i ..............~ ..................................... -  ......... ....................'........... ................................ ........................ -----------------------....................:i—

W il l ia m  H . H astie,
T hubgood M arsh all ,
L eon  A . R an som ,

Counsel for the National Association for the 
Advancement of Colored People.

E dward R . D udley ,
Of Counsel.



I N D E X

PAGE

Motion for Leave to File Brief as amicus curiae--------- 1
Brief for the National Association for the Advance­

ment of Colored People as amicus curiae—_-----------  3
Opinions B elow ------------------------------------------ — 3
Statutes Involved -----------------    3
Question Presented----------------------------------------- 3
Statement of the Case----------     4

Argument:
I Analysis of Appellant’s Claim of Unconstitution­

ality ____________________________________________  5
II Social and Economic Effects of Union Discrimina­

tion --------------------------------------------   ^
III Reasonableness of Section 43 and its Application

to Appellant-------------------------------------------------------  14
IV Trend of Legislation and Adjudication in Other

States as Additional Indicia of Reasonableness-----  17
V Relation of Section 43 to Federal Authority--------  20

Conclusion___________________________________      23

Table of Cases.

Allen-Bradley Local, etc. v. Wisconsin Employment 
Relations Boards, 315 U. S. 740, 751 (1941)------------  21

Cameron v. International Alliance of Theatrical Stage 
Employees, 118 N. J. Eq. 11, 176 Atl. 692 (1935);
cert, denied, 298 U. S. 659-------------------------------------- 19

Carpenters and Joiners Union v. Ritters Cafe, 315
U. S. 722 (1941)_________________________-________  21

Carroll v. Local No. 269, 31 Atl. (2d) 223, 225 (N. J. 
1943)______ -________________ ______________ _____  20



11

PAGE

James v. Marinship Corporation, S. F. No. 17,015-------  18
Kelly v. Washington, 302 U. .S. 1, 10 (1937)___________  21
Lncke v. Clothing Cutters Assembly, 77 Neb. 396, 26 

Atl. 505 (1893) __________________________________  19
Milkwagon Drivers Union v. Meadowmoor Dairies, 312

U. S. 287 (1940)__________________________________ 21
Miller v. Ruehl, 166 Misc. 479, 2 N. Y. S. (2d) 394-------  19
Murphy v. Higgins, 12 N. Y. S. (2d) 913-------- -------- -—  19
Steele v. Louisville & Nashville Ry. Co., 65 Sup. Ct.

226 (1944) _________ _ ____ ----------------------------------  22
Wills v. Local No. 106, 26 Ohio N. P. (N. S.) 435______ 19

Statutes.

Executive Order No. 9346, May 27, 1943------------------  18, 22
Kansas, Act of 1941, Chap. 265----------------------------------  18
Nebraska, Acts of 1941, Chap. 96 ... ---------------------------- 18
New York State Civil Rights Law-----------------------------  5
Pennsylvania, Acts of 1937, Chap. 294-------------------- —- 18
Wisconsin, Laws of 1939, Chap. 57-----------------------------  18

Miscellaneous.

Cayton and Mitchell, “ Black Worker and the New
Unions”  (1939) __________— -----------------------------  6

Commission of Inquiry, Interchurch World Movement,
Report on Steel Strike of 1919 (1920)----- --------------- 7

Feldman, “ Racial Tension in American Industry”
(1931) ________-____________________ ________ ____ 8

Franklin, “ The Negro Labor Unionist in New York”
(1934)_________________________________________  6,12

House Report No. 187, 79th Cong. 1st Session-----------18
Northrup, “ Organized Labor and the Negro”  (1944) 6, 7,16 
Reid, “ Negro Membership in American Labor Unions”  

(1930) ________ -___________________________ 6



I l l

PAGE

Report of New York? State Temporary Commission on 
the Conditions of Colored Urban Population (Feb­
ruary, 1939), New York State Legislative Docu­
ment No. 69 (1939) ---------------------------------------------  13

4 Restatement, Torts, Sec. 794, Comment; Sec. 810— 19,20
Senate Report No. 1109, 78th Cong. 2nd Session--------- 18
Spero and Harris, ‘ ‘ The Black Worker”  (1931)---------  6, 8
United States Census of Partial Employment, Unem­

ployment and Occupation, 1937-----------------------------  13
Wesley, “ Negro Labor in the United States”  (1927)— 6



IN  THE

(Emtrt of ti|£ HUnxUb
October Term, 1944

No. 691

R ailw ay  M a il  A ssociation , 

against
Appellant,

E dward S. Corsi, as Industrial Commissioner of the State 
of New York, and N a t h a n ie l  L. G oldstein , as Attorney 
General of the State of New York.

on appeal  from  t h e  supreme  court of th e  state of 
N E W  Y O R K .

MOTION FOR LEAVE TO FILE BRIEF AS 
AMICUS CURIAE.

To the Honorable, The Chief Justice of the United States 
and the Associate Justices of the Supreme Court of 
the United States:

The undersigned, as counsel for and on behalf of the 
National Association for the Advancement of Colored 
People, respectfully move that this Honorable Court grant 
them leave to file the accompanying brief as Amicus Curiae.

The National Association for the Advancement of Col­
ored People is a membership organization which has for 
the past thirty-five years continuously advocated full 
citizenship rights for all American citizens. This Associ­
ation has dedicated itself to work for the achievement of



2

functioning democracy and equal justice under the Consti­
tution and laws of the United States.

As will more fully appear in the accompanying brief, 
this Court is here asked to decide whether a section in the 
New York Civil Eights Law which forbids denial of mem­
bership in any labor organization to any person by reason 
of his race, color or creed is applicable to a labor organiza­
tion composed of members employed by the United States 
and engaged in the Postal Service. The question is essen­
tially whether the Constitution and laws of the United 
States forbid a State from enacting such a law applicable 
to and regulating equally the conduct of any labor organiza­
tion operating within the State, regardless of whether the 
said organization is composed of employees of the United 
States, the State or private employers.

It is to present written argument on this issue, funda­
mental to the good order and economic security of the 
community, that this motion is filed.

The Attorney General of New York, on behalf of both 
appellees, has consented to the filing of this brief. Counsel 
for appellants has been requested but has refused to con­
sent to the filing of this brief.

W illiam  H . H astie,
T hubgood M arsh all ,
L eon  A. R an som ,

Counsel for the National Association for the 
Advancement of Colored People.

E dwabd E . D udley ,
Of Counsel.



i§>ttpr?mp (SImtrt nf tip States
October Term, 1944

IN  THE

No. 691

R ailw ay  M ail  A ssociation , 

against
Appellant,

E dward S. C orsi, as Industrial Commissioner o f  the S tate 
o f  New York, and N ath a n ie l  L. G oldstein , as Attorney 
General o f  the State o f  New York.

O N  A PPE A L FRO M  T H E  SU P R E M E  COURT OF T H E  STATE OF 
N E W  Y O R K .

BRIEF FOR THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE AS

AMICUS CURIAE.

Opinions Below.

Statutes Involved.

The opinions below and the statutes involved are set 
out in full in the record and in the briefs for both parties 
filed herein.

Question Presented.

The question presented by this Appeal and to which this 
brief is addressed is :

Is the Statute of the State of New York (Civil Rights 
Law, Section 43, enacted L. 1940, C.9) which forbids a labor

3



4

organization, including the appellant association, from de­
nying membership in such organization by reason of race, 
color or creed unconstitutional?

Statement of the Case.

The appellant herein is a foreign corporation organized 
under the laws of the State of New Hampshire. Through 
subordinate local units functioning in different parts of the 
State of New York it carries on the business of the cor­
poration as set out in its charter, viz., “ to conduct the busi­
ness of a fraternal beneficiary association for the sole bene­
fit of its members and beneficiaries and not for profit; to 
promote closer social relationship among railway postal 
clerks; to better enable them to perfect any movement that 
may be for their benefit as a class or for the benefit of the 
Railway Mail Service, * * * ” .

Membership in the Association is limited by its Consti­
tution to “ any regular male railway postal clerk or male 
substitute postal clerk of the United States Railway Mail 
Service who is of the Caucasian race or native American 
Indian.”  Section 43 of the New York Civil Rights Law pro­
vides in part that, “ no labor organization shall hereafter, 
directly or indirectly # * * deny person or persons member­
ship in its organization by reason of his race, color, or 
creed * * *.

Appellant brought an action for a declaratory judgment 
seeking to have the Court hold that Sections 41, 43 and 45 
of the Civil Rights Law of the State of New York and the 
provisions of the labor law do not apply to appellant and 
that the Railway Mail Association is not a labor organiza­
tion within the meaning and contemplation of said laws. 
Appellant also asked the Court to declare “ that if sought 
to be applied to the appellant therein, such laws are in 
contravention to the Constitution of the Unied States.”



5

The appellees, the Industrial Commissioner of the State 
of New York and the Attorney General of the State of New 
York, deny appellant’s allegation that it is not a labor 
organization within the meaning of Section 43 of the New 
York Civil Eights Laws, and the Court of Appeals held that 
appellant is in fact and law a labor organization within the 
meaning of said statute.

A R G U M E N T .

I.
Analysis of Appellant’s Claim of 

Unconstitutionality.

So much of the claim of the appellant as is founded upon 
constitutional grounds asserts in essence that the applica­
tion of Section 43 of the New York Civil Rights Law to 
appellant is made pursuant to arbitrary and unreasonable 
classification, and at the same time is an unwarranted in­
vasion of an area of Federal jurisdiction and control. The 
latter contention cannot mean that a private organization, 
particularly a foreign corporation, functioning within a 
State is beyond reach of the police power of that State be­
cause its members are employees of the United States. To 
be even colorable, any argument of interference with a fed­
eral function in such a case as this must purport to show 
that in attempting to promote its own soverign interests 
the State is actually or potentially impeding the nation’s 
business or overriding national authority.

To test this contention it becomes necessary to examine 
the occasion for and the effect of the legislation in question. 
Such examination will reveal that the application of Section 
43 to appellant does not interfere with any Federal function 
and at the same time that it is predicated upon reasonable 
classification. Thus, both branches of the argument of un-



6

constitutionality become untenable in the light of an exposi­
tion of the social and economic basis and effect of Section 
43.

n.

Social and Economic Effects of Union 
Discrimination.

Throughout the history of American organized labor 
the exclusion of Negroes from labor unions has promoted 
strife between white and colored workmen and operated as 
a disturbing factor of major importance in industry and 
commerce. Besultant disorders have been so frequent and 
so serious as to constitute a substantial menace to the gen­
eral security.

As early as 1855, in the State of New York, when white 
longshoremen who monopolized the port of New York were 
called out on strike, unorganized Negroes were called in 
as strikebreakers. Disorder and rioting were the results.1 
This is not an isolated case. The sequence of certain unions 
excluding Negroes, white workmen striking, unorganized 
and embittered Negro strikebreakers replacing the whites, 
and then serious racial strife, has been a familiar pattern 
in American industrial life for almost a century.2

The great Knights of Labor strike of 1886,3 the national 
steel strike of 1919 broken by some 40,000 unorganized

1 Wesley, Negro Labor in the United States (1927) 79-80.
2 See Cayton and Mitchell, Black Workers and the New Unions 

(1939) ; Franklin, The Negro Labor Unionist in New York (1934) ; 
Northrup, Organized Labor and the Negro (1944 ); Reid, Negro 
Membership in American Labor Unions (1930) ; Spero and Harris, 
The Black W orker (1931) ; Wesley, op cit. supra note 1.

3 See Northrup, op cit. supra note 2, at 78.



7

Negro workmen,4 the continuing racial strife over railroad 
employment,5 the scandalous spectacle of our present war 
effort being impeded by the failure of unions to accept 
Negro workers are but the most sensational manifestations 
of a grave social and economic evil.

The total social effect of such events recurring in com­
munity after community is hurtful beyond measure. As 
one commentator has put it :

“ Aside from availability in strikes, the employ­
ment of Negro labor is used to intimidate the white 
workers and to serve as a threat that should they 
give up their jobs they may find them filled by the 
colored workers. The exclusion of Negroes from the 
white unions has aided the employers ’ purpose, since 
the more Neg*roes he can intermingle in the plant the 
fewer are the possibilities of complete union or­
ganization.

“ One of the deplorable results of this oppor­
tunism on the part of the Negro is to breed animosity 
between white and colored workers, which, along with 
other types of irritations, becomes the tinder to set 
alight some spark of friction into a roaring flame 
of race hatred. The grave social tragedy which some­
times results from such a situation is described in a 
report of the conditions arising in connection with 
a strike in Chicago, from which the following excerpt 
is taken:

“  ‘ It was natural that the strikers outside, 
whose children were hungry, who saw their desire 
thwarted to build on monthly payments a home for 
themselves, should find a strong feeling growing 
against those who, perhaps all unconsciously, were 
lowering, not raising, the standard of living of the

4 See passim Commission of Inquiry, Interchurch World Move­
ment, Report on Steel Strike of 1919 (1920).

5 See Northrup, op cit. supra note 2, Ch. 3.



8

community. A new prejudice was developed against 
the strike-breaker, whether he was Greek or colored, 
who was a commodity of labor hauled and delivered 
from one labor battlefield to another. These immi­
grant workers took at his human value the colored 
worker who joined the union, or who worked by their 
side and was a pleasant person. But the colored 
strike-breaker was a different creature.’ ” 6

The 1924 Convention of the National Association for the 
Advancement of Colored People expressed the general 
alarm of thoughtful persons with reference to this critical 
situation in the following open letter “ to the American 
Federation of Labor and other groups of organized labor” :7

“ For many years the American Negro has been 
demanding admittance to the ranks of union labor.

“ For many years your organizations have made 
public profession of your interest in Negro labor, of 
your desire to have it unionized, and of your hatred 
of the black ‘ scab. ’

“ Notwithstanding this apparent surface agree­
ment, Negro labor in the main is outside the ranks 
of organized labor, and the reason is, first, that white 
union labor does not want black labor, and secondly, 
black labor has ceased to beg admission to union 
ranks because of its increasing value and efficiency 
outside the unions.

“ We face a crisis in inter-racial labor conditions; 
the continued and determined race prejudice of white 
labor, together with the limitation of immigration, 
is giving black labor tremendous advantage. The 
Negro is entering the ranks of semi-skilled and 
skilled labor and he is entering mainly and necessarily 
as a ‘ scab. ’ He broke the great steel strike. He will

6 See Feldman, Racial Factors in American Industry (1931), at 
p. 33.

7 Quoted in Spero and Harris, op. cit. supra note 2, at 144.



9

soon be in a position to break any strike when he can 
gain economic advantage for himself.

“ On the other hand, intelligent Negroes know 
full well that a blow at organized labor is a blow at 
all labor, that black labor today profits by the blood 
and sweat of labor leaders in the past who have 
fought oppression and monopoly by organization. If 
there is built up in America a great black bloc of 
non-union laborers who have a right to hate the 
unions, all laborers, black and white, eventually must 
suffer.

“ Is it not time then that black and white labor get 
together? Is it not time for white unions to stop 
bluffing and for black laborers to stop cutting off 
their noses to spite their faces?”

The State of New York has experienced its full share of 
the evil consequences of racism in labor organization. 
From the already cited waterfront strike of 1855 to the 
Ward Line strike of 1895, racial clashes arising out of 
union exclusion kept New York in intermittent turmoil. 
Rioting, violent death and large scale property destruction 
were the recurrent fruits of divisive and discriminatory 
union practices. This sorry chapter of New York history 
is briefly summarized in the most frequently cited treatise 
on American Negro labor:

“ The Negro came into longshore work in the 
North before the Civil War. He was brought in for 
the most part as a strike breaker or as an instrument 
to divide and weaken white workers. His use for 
such purposes was so extensive that his presence 
came generally to be resented, even when his employ­
ment was altogether innocent of anti-organization de­
signs. This resentment was frequently so bitter as 
to result in riot and bloodshed. Such a riot broke 
out in New York in 1855 when Negroes were used to 
break a water front strike. The situation was re­



1 0

peated in Buffalo in the summer of 1863 when the 
boss stevedores tried to fill the places of former white 
workers with Negroes and provoked a serious fight 
in which twelve black men were badly beaten, while 
one was killed in the fighting and two were drowned. 
The predominant longshore group of the day was the 
Irish, who were then seldom employed at anything 
but the cheapest common labor and, accordingly, re­
sented competition in new and better kinds of work 
in which they were just gaining a foothold. Riots 
almost as serious as that in Buffalo were reported 
in Chicago, Detroit, Cleveland, Albany, New York, 
Brooklyn, and Boston when Negro strike breakers, 
brought in to take the places of Irish strikers, were 
greeted by floods of bricks, stones, and broken 
bottles. During the spring of 1863 rioting between 
the two races along the New York water front was 
frequent, and injury and death often resulted.

“ In June of that year, shortly before the trouble 
in Buffalo, three thousand Irish longshoremen in 
New York lost a strike for higher wages largely be­
cause of the introduction of black labor under police 
protection. A month later these defeated Irish long­
shoremen led the draft riots in an attempt to resist 
forced military service in behalf of Negroes whom 
they feared and hated as their industrial rivals.

“ Despite indications and the fears of the Irish, 
the Negro failed to gain a prominent place in long­
shore work at this time. In fact, his role along the 
water front in New York and the North generally 
became less and less important, while the Irish held 
their own. They continued to dominate the trade 
down to 1887 when the shipping companies in New 
York turned to Italians to break the ‘ big strike,’ led 
by the Knights of Labor. Several lines also used 
Negro strike breakers on this occasion, but let most 
of them go when their old men returned. Six years 
later, in an extensive strike in Brooklyn, Italians and 
Negroes brought from the South were again used as 
strike breakers, but it was the former, who had been



1 1

becoming an increasingly important factor in the in­
dustry for the past six years, who really broke the 
strike. Fights and brawls between the Irish strikers 
and Italian scabs took place all along the water front. 
At times the situation became so serious as to require 
the calling of police reserves. Soon the strike took 
on an interracial aspect and became a fight against 
the Italians. Every Italian who came near the water 
front, even though he had nothing whatever to do 
with the strike, was in danger of attack. The fruit 
vendors and peanut men who used to ply their trades 
along the docks dared not show themselves. In one 
instance, according to the newspapers, an Irishman 
who was mistaken for an Italian ‘ because he wore a 
sloven hat’ was chased for blocks and pounded before 
he could explain. Apparently, it is not the Negroes 
alone who have suffered as a group because some of 
its members have taken the places of men on strike.” 8

More recently, following the disastrous Harlem race riot 
of March 19, 1935, the Mayor’s Commission on Conditions 
in Harlem as well as private agencies undertook to survey 
the condition of Negro labor in New York. One of the re­
sults of this effort was a definitive study by Charles L. 
Franklin, published in book form in 1936 and entitled “ The 
Negro Labor Unionist in New York.”  While noting a 
numerical increase in Negro unionists in Manhattan from 
1,385 in 1910 to 39,574 in 1935, and a corresponding spread 
in occupational distribution, Dr. Franklin concludes his 
historical and analytical study with this statement:

“ The foregoing facts and conclusions warrant 
two further conclusions—of a more general nature. 
First, the labor union situation in Manhattan as it 
affects Negroes is similar to that in the United States 
as a whole. In Manhattan there is represented every 
type of labor union relation, practice and policy in

8 Id, at 179-199.



1 2

regard to Negro workers, as was found by investiga­
tors (mentioned in the preface) to exist in the United 
States. It has already been pointed out above 
that these practices vary from acceptance of Negro 
workers into membership on an equal basis with 
white workers, as in the International Ladies’ Gar­
ment Workers’ Union, to a complete exclusion of 
Negro workers by constitutional provision as in the 
Masters, Mates and Pilots of America, the railroad 
Brotherhoods and others. Between those two ex­
tremes are the unions that, put Negro workers in 
separate locals or in auxiliary bodies responsible to 
white unions, those that neither discourage nor en­
courage Negro workers to join their ranks and those 
organized independently by Negro workers. Just as 
the absence of membership or limitations on full 
membership of Negroes in unions over the entire 
United States produced the net result of their not 
being able to gain a prominent position in the indus­
trial life of the American people, so did the same 
conditions in Manhattan prevent Negro workers 
there from gaining a desirable place in the local labor 
movement and industrial life. Lack of organization 
has deprived them of the means whereby they could 
maintain proper standards of living and assure them­
selves of sufficient power to combat low wages, de­
plorable working conditions, unjust discrimination 
and, in general, all forms of injustice. However, 
although there is this similarity between Manhattan 
conditions and national conditions, there is some 
difference in degree. In Manhattan conditions are 
not quite so serious as in the United States as a 
whole.”  9

Another measure of the social consequences of racial 
discrimination by unions controlling large areas of employ­
ment is to be found in the disproportionately large part of 
the burden of public relief represented by indigent Negroes

9 See Franklin, op. cit. supra note 2, at 266.



13

unable to find work. In the State of New York, according 
to the Unemployment Census of 1937, Negroes constituting 
3.3 per cent, of the population, constituted 9.4 per cent, of 
the unemployed. Out of 320,826 Negroes of employable age, 
91,071 wTere unemployed.10 To remedy such a condition 
becomes one of the most serious responsibilities of the 
State.

The enactment of Section 43 was recommended to the 
New York Legislature by the New York State Temporary 
Commission on the Condition of the Colored Urban Popu­
lation in its Report of February, 1939.11 The Report fully 
confirmed and amplified the earlier private findings as to 
the widespread existence and hurtful consequences of union 
discrimination. The following excerpt is particularly note­
worthy :

“ Collective bargaining may be considered in one 
aspect a private agreement between an employer and 
his employees concerning only the interests of those 
responsible for the agreement. In another sense, 
however, such an agreement becomes a broader mat­
ter and one concerning the general public interest, 
for it involves not only wrage levels for the persons" 
in question and the standard of living of a portion 
of the community, but also, in the case of a closed 
shop, even the work opportunities available to those 
who are not participants in the agreement.”  * * *

“ That many unions are guilty of such unfair 
practices especially toward the Negro group, is a 
matter of proven fact. It is openly admitted, even 
by trade-union leaders, that a considerable number 
of international unions exclude Negroes from mem­
bership and privileges, either by provision in the 
international constitution, or by practices in the

10 Compiled from United States Census of Partial Employment, 
Unemployment and Occupations, 1937.

11 Published by the State as Legislative Document (1939) No. 69.



14

ritual of initiation, or by tacit understanding among 
their officers.”  * * *

“ The Commission has no complete figure showing 
the New York State membership of these unions, 
but it is sufficiently large and numerous to exercise 
an important influence on the policies of organized 
labor toward Negro membership.”  # * #

“ Refusal of membership to Negroes has been re­
ported in many building trade-union locals, where 
again no constitutional bar to Negro membership 
exists and where discrimination is accomplished 
solely on the authority of local officials. Only a 
strong revolt on the part of the liberal members of 
the painters’ union of New York City broke down a 
discriminatory policy which has been practiced to­
ward the Negro painters of the city.”  * * *

“ It is with these considerations in mind that the 
Commission has recommended legislation designed in 
some measure to protect workers of minority groups 
from unfair discrimination by labor unions.”  12

III.

Reasonableness of Section 43 and Its 
Application to Appellant.

It is in this setting and in the light of this history that 
the enactment of Section 43 of the Civil Rights Law in 1940 
must be considered. Experience had shown clearly that the 
avoidance of strife between white and Negro workers and 
their partisans, the assurance of greater employment oppor­
tunities for Negroes and the utilization of the full produc­
tive capacity of the community were important social ob­
jectives to which the State must address itself. Legislation 
prohibiting labor union discrimination offered one obvious 
approach.

12 Id. at 45, 46, 47.



15

The problem existed with reference to all types of 
employment within the State. It was not restricted to 
enterprise of exclusively local character or to unions of 
employees working for private persons. Economic and 
social dislocation, local disorders and the impoverishment of 
minority groups resulted as much from practices of unions 
whose members were engaged in interstate commerce or 
employed by government as from the practices of any other 
unions. Indeed, the most recent responsible study of union 
racial practices shows such unions among the most serious 
offenders:

“ At least fourteen American unions specifically 
exclude Negroes from membership by provisions to that 
effect in either their constitutions or their rituals. . . .

‘ ‘ To summarize the above in tabular form :
“ I. Union which exclude Negroes by provision in 

ritual:
Machinists, International Association of 
(AFL)

II. Unions which exclude Negroes by provision in 
constitution:
A. AFL Affiliates

Airline Pilots’ Association 
Masters, Mates and Pilots, National Organi­

zation
Railroad Telegraphers, Order of Railway 

Mail Association (italics added) 
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 Yardmasters of 

America
Railroad Yardmasters of North America



16

Railway Conductors, Order of 
Train Dispatchers’ Association, Ameri­

can.13
It is noteworthy in this connection that although appel­

lant denies being a “ labor organization”  it has voluntarily 
become an “ affiliate”  of the American Federation of 
Labor. Its activity in the field of labor relations, as con­
ventionally defined, is noted in the opinion of the Court of 
Appeals in the present litigation, and the finding of that 
court as to the character of the appellant as a “  labor organ­
ization”  within the meaning of the New York statute should 
be deemed conclusive on this appeal. Moreover, it is stipu­
lated in the Record that “ any Appellate Court may con­
sider as exhibits offered by defendants

* * * ‘ The Black Worker’ * * * by * * * Spero and * * * 
Harris * * # quotations from pages 67-69”  (R. 11, 13). The 
following significant excerpt is from the evidence thus in­
troduced in this case:

“ It appears from the following resolution, adopted 
by the Illinois branch of the Railway Mail Association, 
protesting against the appointment of a Negro clerk-in­
charge at the Terminal Railway Post Office in Chicago, 
that the ‘ high mortality rate among Negro Members’ 
was only a pretext for excluding others in the future:

“ Whereas, a colored clerk has been appointed in 
the Chicago, Illinois, Terminal R. P. O., and

“ Whereas, said clerk-in-charge has direct super­
vision over thirty-three clerks of Caucasian birth; 
and

“ Whereas, this does not create harmonious rela­
tions between clerks and clerks-in-charge, nor would 
it in any other case similar in character, nor can the 
best interests of the service be obtained under such 
condition; and

“ Whereas, we believe that no colored clerk-in­
charge can supervise the work of clerks of Caucasian

18 See Northrup, op. cit. supra note 2, at 2, 3-4.



17

birth to best advantage, nor to the best welfare of 
the employees, therefore be it

“ Resolved, That the Illinois Branch Sixth Divi­
sion R. M. A., in regular session assembled vig­
orously protest this assignment or any future assign­
ment of a (Negro) clerk-in-charge who will have 
direct supervision over a crew any of whom are of 
Caucasian birth.

‘ ‘ This branch was not unique in its stand. Other 
branches protested similar appointments.”

Thus the appellant is revealed not only to be functioning as 
a traditional labor organization, but also to be employing 
its representative authority and power to induce the officers 
of the Postal Service to discriminate against Negroes.

In such circumstances the legitimate and important pub­
lic purpose of Section 43 can be achieved only by requiring 
appellant to obey its mandate. Appellant’s voluntary acts 
have made such application of Section 43 both reasonable 
and necessary. Indeed, any exception in favor of appellant 
would be arbitrary and unreasonable.

IV.

Trend of Legislation and Adjudication in Other
States as Additional Indicia of Reasonableness.

While not in themselves decisive of the Constitutional 
issues raised by appellant, recent legislation and judicial 
decisions in states other than New York comprehensively 
striking down arbitrary discrimination in membership by 
labor unions, strongly indicate that Section 43 is in line with 
enlightened judgment throughout the nation as to the social



18

dangers of union discrimination and the propriety and rea­
sonableness of its prohibition by state action.14

Chapter 265 of the Kansas Acts of 1941 forbids labor 
organizations which exclude persons from membership 
because of race or color from acting as a collective bargain­
ing representative in that state. Chapter 96 of the Nebraska 
Acts of 1941 approaches the problem somewhat differently 
by prohibiting representatives of, labor from racial dis­
crimination in collective bargaining. Pennsylvania, by 
force of Chapter 294 of the Acts of 1937, denies the protec­
tion of the State Labor Relations Act to all unions which 
restrict membership because of race, creed or color. Chap­
ter 57 of the Wisconsin Laws of 1939 requires the termina­
tion of any closed shop agreement if the union arbitrarily 
restricts membership.

Several State courts have considered it a proper exercise 
of judicial power to restrain arbitrary discrimination in 
union membership which has damaged a complainant, even 
without legislative declaration of policy. The most recent 
and carefully reasoned of these decisions, James v. Marm- 
ship Corporation, S. F. No. 17,015, was decided by the Su­
preme Court of California in January, 1945, but has not yet 
been officially reported. Summarizing the views of other 
State courts and indicating its own, the California court 
there said:

14 Federal policy indicates the same trend in responsible official 
judgment. By express provision of Executive Order Number 9346, 
dated May 27, 1943, the President has prohibited ‘ ‘labor organiza­
tions” in “ war industries” from discrimination in “ union membership 
because of race, creed, color of national origin.”  During the 78th 
and 79th Congresses committees of both Houses reported favorably 
on legislaton prohibiting union discrimination which burdens inter­
state commerce. See Senate Report No. 1109, 78th Congress, 2nd 
Session, and House Report No. 187, 79th Congress, 1st Session.



19

“ Some courts have held that state legislation is 
necessary in order to announce a public policy re­
stricting a union’s right to arbitrarily exclude in­
dividuals from membership although as a result 
thereof excluded persons are unable to find employ­
ment in their chosen trade. (See for example, Miller 
v. Ruehl, 166 Misc. 479, 2 N. Y. S. 2d 394; Murphy v. 
Higgins, 12 N. Y. S. 2d 913.) As said hereinbefore, 
however, other authorities have indicated that the 
courts without statutory aid, may restrain such con­
duct by a union on the ground that it is tortious and 
contrary to public policy. Further, as said in 4 Re­
statement, Torts, page 136, comment on section 794: 
‘ The expression of public policy is not confined to 
legislation and criminal law; in passing upon the 
propriety of an object (of concerted labor action), 
public policy otherwise defined is an important factor. 
If the object is an act against which the law has 
definitely set its face, it is not a proper object of con­
certed action. ’ ’ ’

The New Jersey Chancellor, in Cameron v. International 
Alliance of Theatrical Stage Employees,15 16 17 enjoined the en- 
enforcement of union rules, arbitrarily discriminatory 
against certain members. The Maryland Court of Appeals, 
in Lucke v. Clothing Cutters Assembly,16 approved an award 
of substantial damages to a worker arbitrarily denied ad­
mission to a union with the consequence that he lost his job. 
An Ohio decree, in Wills v. Local No. 106,17 restrained a 
union from picketing for the discharge of Negro employees 
whose applications for union membership it had arbitrarily 
rejected. The American Law Institute, in its Restatement

15118 N. J. Eq. 11,176 Atl. 692 (1935) cert, denied, 298 U. S. 
659.

16 77 Md. 396, 26 Atl. 505 (1893).
17 26 Ohio N. P. (N . S .) 435.



2 0

of the Law of Torts, Section 810, has found the law to be 
that “ workers who in concert procure the dismissal of an 
employee because he is not a member of a labor union . . . 
are . . . liable to the employee if, but only if, he desires to 
be a member of the labor union but membership is not open 
to him on reasonable terms.”

The underlying concept of public policy upon which 
courts have proceeded in this entire line of decisions has 
recently been stated by the New Jersey Chancellor in Carroll 
V. Local No. 269:18

‘ ‘ A voluntary union should be one in which a law- 
abiding individual of good moral character, possess­
ing the essential qualifications of his trade, can enter 
upon compliance with rules and by-laws reasonably 
appropriate for the stability and usefulness of the 
association. Autocracy is no less inimical to our 
American ideals if practiced by many rather than 
by one. Since 1890 we have regarded labor unions as 
voluntary associations. Let them in reality continue 
to be such.”

As the urgent need for governmental restraint of racial 
discrimination by labor unions thus impresses itself upon 
increasing numbers of State courts and legislatures, the 
burden on those who deny that this is a proper State func­
tion becomes heavier.

V.

Relation of Section 43 to Federal Authority.

It cannot rationally be argued that employees of the 
Postal Service are “ federal instrumentalities,”  and cer­
tainly it cannot be argued that appellant, a private cor­

18 31 Atl. (2d) 223, 225 (N . J. 1943).



2 1

poration, with entity distinct from its members, is such an 
instrumentality. Yet, it appears to be appellant’s conten­
tion that any regulation of its conduct is an unconstitutional 
interference with a Federal function. But this argument 
would also strike down State income taxation in its applica­
tion to salaries of postal employees, or local traffic regula­
tions in their application to postal employees, or State in­
surance laws in so far as they might affect mutual companies 
insuring postal employees.

The answer to appellant’s contention is to be found in 
the settled principle that “ the exercise by the State of its 
police power, which would be valid, if not superseded by 
Federal action, is superseded only where the repugnance or 
conflict is so ‘ direct and positive’ that the two acts cannot 
‘ be reconciled or consistently stand together’ ” , as restated 
with extended review of earlier authorities by Mr. Chief 
Justice H ughes in Kelly v. Washington.19 This Court has 
recently applied that principle in Allen-Bradley Local, etc. 
v. Wisconsin Employment Relations Board,19 20 to a Wiscon­
sin regulation of labor disputes admittedly within the area 
of Federal control under the National Labor Relations Act, 
reasoning that since state and federal regulations “ as 
focused in this case can stand together, the order of the 
state Board must be sustained under the rule which has 
long obtained in this court.”

The application of Section 43 to appellant in this case, 
far from impeding any exercise of federal authority, imple­
ments federal policy and requirements as declared by the

19 302 U. S. 1, 10 (1937).
20 3 1 5 U. S. 740, 751 (1941). Cf. Carpenters and Joiners Union 

v. Ritters Cafe, 315 U. S. 722 (1941) ; Milkwagon Drivers Union V. 
Meadowmoor Dairies, 312 U. S. 287 (1940).



2 2

President in Executive Order Number 9346, dated May 27, 
1943:

“ I do hereby reaffirm 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 na­
tional origin, and I do hereby declare that it is the 
ditty of all employers, including the several Federal 
departments and agencies, and all labor organiza­
tions, in furtherance of this policy and of this Order, 
to eliminate discrimination in regard to hire, tenure 
terms or conditions of employment, or union member­
ship because of race, creed, color, or national origin. ’ ’ 
(Italics added.)

That such policy of the national sovereign is a matter 
not of discretion, but rather of constitutional necessity is an 
implicit premise of this Court’s decision at the present 
Term in Steele v. Louisville & Nashville Ry. Co.,21 and ex­
pressly stated in the concurring opinion of Mr. Justice 
M u b p h y  :

“ The Constitution voices its disapproval when­
ever economic discrimination is applied under au­
thority of law against any race, creed or color. A 
sound democracy cannot allow such discrimination to 
go unchallenged. Racism is far too virulent today 
to permit the slightest refusal in the light of a Con­
stitution that abhors it, to expose and condemn it 
wherever it appears in the course of a statutory 
interpretation. ’ ’ 22

In such circumstances there can be not even semblance 
of conflict between the state and the’ United States as a 
result of the application of Section 43 to appellant.

21 65 Sup. Ct. 226 (1944).
22 Id. at 235.



23

*

C o n c lu s io n .

Appellant’s contention that its Constitutional 
rights have been infringed is groundless. The 
appeal should be dismissed.

Respectfully submitted,

W illiam  H . H astie,
T hurgood M arsh all ,
L eon  A. R an som ,

Counsel for the National Association for the 
Advancement of Colored People.

E dward R . D udley ,
Of Counsel.



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