Standing on Principle

Jenkins’s Influences on National Labor Relations Board Opinions

1963-83


  TABLE OF CONTENTS

 

    During his first term on the National Labor Relations Board, beginning in 1963, Jenkins frequently found himself leading the way in important cases and influencing national labor law.  He wrote the majority opinion in the landmark Hughes Tool (Independent Metal Workers Union, Local No. 1), 147 NLRB 1572 (1964).  In that opinion, he stated, “Specifically, we hold that the NLRB cannot validly render aid under Section 9 of the Act to a labor organization which discriminates racially when acting as statutory bargaining representative.”  It was a watershed case for African American workers, long discriminated against even within the supposedly protective umbrella of the labor union. 

     Later, conflicts arose between the Civil Rights Act of 1964 and the Miranda Fuel decision of 1962 regarding what should come before the NLRB.  Local Union No. 12, United Rubber Workers of America, 150 NLRB 312 (1964), involved a company that permitted three separate seniority rolls – Caucasian male, African American male, and female.  There were also racially separate facilities.  The Fifth Circuit held that Section 8 of the National Labor Relations Act (NLRA) “was not restricted to discrimination which encourages or discourages union membership.  The court also held that the Civil Rights Act did not intend to limit the jurisdiction of the NLRB.   

Justice Thurgood Marshall

Sworn in by Justice Thurgood Marshall

1968

1968 - Oath of Office 

     Jenkins was appointed to his second five-year term on the NLRB in July 1968 by President Lyndon Johnson.  He was sworn into his second term by Supreme Court Justice Thurgood Marshall.  During his swearing-in ceremony, Jenkins re-affirmed his commitment to addressing racial issues in the collective activity of labor unions, “The spirit of divisiveness is also evident in the field of industrial relations.  Lines are being drawn and separatism seems on the rise not only as between organized labor and organized management, but also within the ranks of each.”

     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.   

Hospital Workers Local 1199

1969 

Victory for the Hospital Workers Local 1199 

     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.  

1970 - U.S. Postal Service Placed under NLRB Jurisdiction
1970 - U.S. Postal Service Placed under NLRB Jurisdiction  

     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.   

Emporium Capwell Co

1973 - Emporium Capwell Co. v.
Western Addition Community 
Organization , 420 U.S. 50 

     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 

National Labor Relations Board

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.  

1973 - Handy Andy

1973

Handy Andy

     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.

1977

Howard Jenkins with President Gerald Ford

 

        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.

 

 

 

 

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Howard Jenkins, Jr.

1936

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