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National Labor Relations Board (1963-1983)
Jenkins was appointed to the National Labor Relations Board (NLRB) in 1963 by the Democratic President Kennedy despite his life-long affiliation with the Republican party. His appointment coincided with the landmark civil rights legislation proposed by President John F. Kennedy, which was supported by civil rights organizations and their historic march on Washington, D.C., in 1963. The day after the historic march, Howard Jenkins, Jr., was sworn in as a member of the NLRB.
Out of respect for Dr. Martin Luther King and the civil rights march on Washington, Jenkins postponed his swearing-in ceremony until August 29, 1963. During his acceptance speech, Jenkins said, “I know that it has not escaped your attention that I am a Negro. I am conscious of the inter-relationship between the problems of the Negro in the work force and the myriad of problems of our industrial economy.” He confirmed that much of what was said and done in the past is equally relevant in the present.
Early in his tenure at the NLRB, Jenkins left no doubt that his voice would be remembered as one of those brave individuals who spoke out unflinchingly for the equality of all Americans. Shortly after his appointment to the Board, Jenkins addressed the Urban League of Kansas City. He described the plight of African American workers during that time:
I hold the conviction that no lasting solution is to be found in the many faceted racial problem in the United States unless provision is made for rescuing the masses of Negroes from economic oblivion to which they are otherwise consigned in this age of automation.
Jenkins’s appointment to the NLRB in 1963 meant that he would have the opportunity to broaden the activities of trade unions generally. His experience under the Landrum-Griffin Act, however, taught him to recognize that not all trade unions were accepting of the principles of equality and opportunity – two central themes in Jenkins’s legal work. Jenkins looked to the National Labor Relations Act (NLRA) and the NLRB as vehicles through which change could be accomplished.
Above all else, Jenkins firmly believed in the power of the individual, using the law, to change history. He was keenly aware of the effects of racism in unions and therefore felt the role of the Board in encouraging collective bargaining between the employees (particularly minorities) and primarily white employers would provide “many opportunities to strike a blow for freedom.”
Jenkins’s commitment to both individual civil rights and the rights of labor unions often led to a tension in his work. He expressed it once as the “tension between collective action and the rights of the individual vis-à-vis that collectivity.” It often became a question of where the group rights ended and individual rights began. Throughout his years on the NLRB, Jenkins strove to encourage labor unions and labor policy while preserving and promoting individual civil rights and racial equality.
He was later re-appointed to the Board by Presidents Lyndon Johnson (1968), Richard M. Nixon (1973), and Jimmy Carter (1978).
As the 1960’s were drawing to a close, America was being torn apart by race riots. In 1967, President Johnson created an 11-member National Advisory Commission on Civil Disorder to investigate racial unrest and to recommend remedial action. Jenkins, unwilling to solely address the increasing racial problems through his role as a Board Member, used speaking engagements across the country to speak out about the causes for African Americans’ unrest. In an August 1967 address to the Urban League of the Pikes Peak Region he noted:
It lies within the power of American industry to create the jobs so sorely needed. It lies within the power of American trade unions to see that every assistance is given to the placement of Negro Americans in the industrial work force.
He also issued an appeal:
Let the Negro men in these cities go to work, let them feel the dignity of being productive, let them assume their rightful places as family supporter and family head, let them raise up sons who look not to a welfare worker or the postman with a relief check, but to their father who supports them with his adequate earnings.
During early 1968, vicious racial intolerance manifested itself in the assassination of Martin Luther King, Jr., on April 4. With Dr. King’s death and the issuance of the Kerner Commission’s report, Jenkins returned to Denver to deliver a very sober analysis of the American legal system and its impact on African Americans. In his address to the alumni of his alma mater on June 6, 1968, Jenkins stated:
Long ignored endemic problems fester and eventually erupt with critical consequences. Many Americans profess not to understand the basis for the increasing distrust of the legal process as a method for solving the social ills that beset our Nation. They seem not to comprehend the deep-seated sense of frustration seething in the breasts of young black men and women whose children are attending the same public schools, getting the same inadequate education that they received, and they recall that their parents assured them that those conditions would be corrected while they were still children. Now they are grown and the gap between promise and practice has grown wider, and victims of the system need no committees of experts to define their problem.
During the latter half of his second term on the NLRB, the make-up of the Board began to shift, and Jenkins no longer found himself in the majority on some of the more visible cases involving racial issues. Nonetheless, he continued to strongly voice his opinions in dissent.
The late 1960’s and early 1970’s brought cases to the NLRB which presented novel issues and involved questions of invidious discrimination in employment. United Packinghouse v. NLRB (Farmers’ Cooperative Compress), 169 NLRB 290 (1968, 416 F.2d 1126 (D.C. Cir. 1969), cert. denied, 396 U.S. 903 (1969), decision on remand 194 NLRB 85 (1971), debated the extent of the NLRB’s jurisdiction in racial discrimination cases. The United States Court of Appeals for the District of Columbia Circuit held that racial discrimination is a violation of Section 8 because it interferes with or restrains the discriminated-against employees from exercising their statutory right to act concertedly for their own aid or protection (as guaranteed by Section 7). In its decision, the court quoted Brown v. Board of Education and expanded the concept of the psychological implications of stigmatization discussed in Brown to the employment sphere. The court relied upon congressional testimony of labor leaders about the impact of racial discrimination on African American workers. The court remanded the case to the NLRB for hearing on whether the company had an invidious discriminatory policy and practice toward African American and Latin American workers.
On remand, the NLRB disagreed with the Court of Appeals’ finding that docility was produced by discrimination. The majority of the Board held that the company did not have a policy and practice of invidious discrimination, even though it maintained a discriminatory retirement plan and transfer policy. Jenkins dissented. He argued that invidious discrimination employment practices and policies which may induce apathy and docility in minority employees is a violation of Section 8, and he saw docility as a manifestation of the divisiveness.
Later, in Western Addition Community Organization v. NLRB, 192 NLRB 173 (1971), rev’d, 485 F.2d 917 (D.C. Cir. 1973), rev’d sub nom., Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), Jenkins relied upon legal precedent to expose a far deeper issue that the Board’s “myopic” ruling failed to address. Once again in dissent, Jenkins said that unions are not authorized by Congress to discriminate on the basis of race.
Emporium Capwell involved African American employees who believed the union’s grievance and arbitration mechanisms were ineffective in combating discrimination. They circumvented the union’s grievance policies and directly picketed their employer, and were subsequently fired. A majority of the Board held that the employees had unlawfully attempted to force the employer to bargain with them (thus usurping the role of the union as the collective bargaining agent).
The Supreme Court upheld the Board’s decision and rejected the idea that an exception to Section 9 must be recognized to protect the rights of minority workers to eliminate discrimination in the work place. The Court stated that “central to the policy of fostering collective bargaining…is the principle of majority rule” and not all who are represented will be satisfied. The Court accepted the principle that nondiscrimination was embodied as a high priority in national labor policy, but questioned whether separate bargaining was the way to achieve it.
In his third term – re-appointed in October 1973 by President Richard M. Nixon – Jenkins continued to voice his dissent in important cases involving racial issues. He held to his opinions in United Packinghouse and Hughes Tool as ways of protecting individual civil rights.
In Jubilee Manufacturing Company, 202 NLRB 272 (1973), the Board set forth when a violation under the NLRA would occur because of an employer’s acts of invidious discrimination. Here, the Union alleged sexual discrimination. The Administrative Law Judge had concluded the record was insufficient to establish that the employer had developed and practiced a policy of discrimination based on sex. This determination precluded a decision on the United Packinghouse issue: whether an employer’s policy and practice of invidious discrimination interferes with or restrains in violation of Sections 8(a)(1) and (3) the discriminated-against employees in exercising their Section 7 rights.
The Board agreed that the allegations could not be dismissed because discrimination is not inherently destructive of employees’ Section 7 rights. It held there must be actual evidence, as opposed to speculation, of a nexus between the alleged discriminatory conduct and the interference with or restraint of employees in the exercising of their protected Section 7 rights.
Jenkins dissented, relying on Steele and his opinion in United Packinghouse. He found the employment policies and practices of the employer illegal and, as such, inherently destructive of employee rights under Section 7. Therefore, he argued, such conduct violated Sections 8(a)(1) and (3) of the Act.
Bekins Moving and Storage, 211 NLRB 138 (1974) found Jenkins in the majority once again on an important discrimination case as the board reaffirmed the principles of Hughes Tool. The employer in Bekins contended that the Board was precluded from holding a union election because the Board had a constitutional duty not to certify a discriminatory union. The dissenting opinion argued that the Board had no authority to deny certification. Jenkins, however, stated that “what the Board lacks is not the statutory power to withhold their certificate, but rather the constitutional power to confer it.” He claimed the duty of fair representation was in the Constitution as well as in the statute. Jenkins and Board Member William Miller voted for denying certification to labor unions which had practices, but not policies, of racial discrimination.
Jenkins’s majority opinion in Bekins was short-lived, however. By 1977, newly appointed members had even further realigned the Board’s politics, and a majority overruled Bekins in Handy Andy, Inc., 228 NLRB 447 (1977). In Handy Andy, the majority held that neither the Fifth Amendment nor the NLRA required the Board to resolve questions of invidious discrimination in certification proceedings. It held there was no nexus between Board certification and any discrimination by a labor union’s activity, and that certification is only an acknowledgement that a majority of employees voted for the union as their representative.
In his dissent, Jenkins maintained that the majority undercut Hughes Tool, which held that on constitutional grounds, discriminatory practices by a union required denial of representation privileges.
The Handy Andy majority rationale gained appellate court support in Bell & Howell Co., 230 NLRB 420 (1970), 598 F.2d 136 (D.C. Cir. 1979), cert. denied, 442 U.S. 942 (1979). Bell & Howell involved a company alleging that the Union practiced invidious discrimination based on sex. The Board denied the motion to disqualify and ordered issuance of certification.
The Court of Appeals enforced the Board’s order. It endorsed the previously held Handy Andy position that challenges of alleged union practices of invidious discrimination through Section 8 of the NLRA, in lieu of withholding certification, would best effectuate the purpose of the Act.
Once again, Jenkins disagreed, citing his dissenting opinion in Handy Andy. He added, “The availability of other remedies does not legitimize this unconstitutional conduct. The Constitution does not permit an arm of the Government to participate in invidious discrimination, against women or any other persons, until other remedies come into play.” Illustrating the shortcomings resulting from the Handy Andy approach Jenkins ended his dissent by noting that Bell & Howell claimed the Union’s discriminatory practices had an effect of excluding women from employment as stationary engineers. As a consequence, there would not be a bargaining unit member to even seek enforcement of the Union’s statutory obligations.
The final paragraph of Jenkins’s dissenting opinion in Bell & Howell highlights his deep and ever-abiding concern that all employees – regardless of race, creed, sex, religion, or national origin – must be fairly represented by their collective bargaining representative. It also conveyed his firm belief that it was the NLRB’s responsibility to insure all employee’s this protection:
The national policy against discrimination in employment is poorly served by this decision of my colleagues. Moreover, this decision represents a clear abrogation of our constitutional duty to refrain from sanctioning, assisting, and supporting invidious discrimination. Indeed, this decision marks a step backward for all those who would seek the good offices of our Agency to combat discrimination, whether it be on the basis of race, creed, color, sex, religion, or national origin.