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Hotspots in a Cold War: The NAACP’s Postwar Labor Constitutionalism, 1948-1964
DRAFT1
On September 15, 1948, Clarence Mitchell, the head of the NAACP’s Labor Department,
called a conference with the CIO’s Assistant Counsel Frank Donnor. Marian Wynn Perry of the
NAACP’s Legal Department joined them at the union’s offices.2 Frank Donnor, it appeared, had
a proposition to make. The CIO wanted the NAACP to intervene when one of the CIO’s
interracial unions was competing with a rival “lily-white” union in front of the National Labor
Relations Board (NLRB or “the Board”). The NAACP, Donnor proposed, would try to get Board
approval of the all-white union declared unconstitutional. The CIO would not only get rid of a
challenger, but would also undercut its competitors’ ability to use racist appeals to raid or defeat
the CIO’s interracial unions, a problem that was proving a major barrier to the CIO’s attempts to
organize across the nation.3
The legal strategists all knew that their plan was far from fool-proof. For over fifty years,
a late nineteenth-century Supreme Court decision had put black workers’ exclusion from
workplaces and unions out of the reach of the Constitution. Decided in 1883, The Civil Rights
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National Association for the Advancement of Colored People (NAACP) and the Congress of International
Organizations (CIO). The NAACP’s Legal Department was set up as a separate non-profit organization, the Legal
Defense Fund, Inc. (LDF) for tax purposes. However, this was more of a paper separation until 1956 when Southern
Democrats pressed the Internal Revenue Service to investigate the relationship between the two organizations and
LDF had to distinguish itself further to keep its tax-exempt status. Mark Tushnet, Making Civil Rights Law:
Thurgood Marshall and the Supreme Court, 1936-1961 (New York, 1994), 310-11. In this paper, I use the more
general term “NAACP” to capture the cooperation between LDF, the NAACP’s Labor Department, its National
Legal Committee (a loose network of lawyers across the country who consulted on cases), and attorneys in the
organization’s regional and local branch offices that these cases involved.
3
Raiding involves one union trying to lure away the members of a competitor union. For examples of interracial
CIO unions’ practices leading to raiding and election wins by all-white Independent and AFL unions, see Marian
Wynn Perry to NLRB, January 30, 1948, Library of Congress Manuscript Division (LCMD), Part (P)13-Series
(Ser.)C-Reel (R)7: 93-95; Marian Wynn Perry, February 5, 1948, LCMD, P13-Ser.C-R7: 97; Robert Rodgers
Korstad, Civil Rights Unionism: Tobacco Workers and the Struggle for Democracy in the Mid-Twentieth Century
South (Chapel Hill, 2003). Hereinafter, LCMD citations refer to the edited microform edition of the Library of
Congress’s collection of the NAACP’s papers.
1
2
Cases established a “state action” doctrine which limited the Fourteenth Amendment’s guarantee
of racial justice to actions taken by the state and its agents.4 This rule drew a strict line between
public and private acts of discrimination, prohibiting the former and protecting the latter.5 After
this doctrine’s inception, the economy, particularly the terms and conditions of employment,
came to be seen as quintessentially private and thus strictly out of the Constitution’s reach.
During the Depression, however, Roosevelt’s New Deal government blanketed the workplace
with legislation. In particular, in 1935 Congress passed the National Labor Relations Act
(NLRA) which guaranteed workers’ right to organize and established the NLRB to oversee and
regulate everything from union organizing campaigns to the negotiation of work place contracts.6
After the NLRA’s passage, unionization sped along, but not necessarily to the advantage
of black workers. The Board’s protection of organizing campaigns, guarantees of union
elections, certification of the winning unions, and ability to force employers to negotiate with
these certified unions helped millions unionize. However, many white workers used their
enhanced power to form racially exclusive locals and to squeeze African-Americans out of the
few Depression era jobs they had.7
4
Civil Rights Cases, 109 U.S. 3 (1883). The Fourteenth Amendment limits state government actors. By the mid-20th
Century, the Fifth Amendment was also understood to grant the same protections against agents of the federal
government. This paper combines 14th and 5th Amendment constitutional claims under the term “constitutional.” If
the challenged action is attributed to the federal government it is a 5th Amendment claim; if it is attributed to state
government it is a 14th Amendment claim.
5
A little over a decade after deciding the Civil Rights Cases, the Supreme Court issued its infamous Plessy v.
Ferguson decision. 163 U.S. 537 (1896). Plessy nearly obliterated whatever prohibitions the 14 th Amendment
retained after the Civil Rights Cases by declaring that state enforced segregation did not constitute discrimination.
6
National Labor Relations Act § 1, ch. 395, 74 Stat. 450 (1935). For histories of the NLRA’s passage see, James A.
Gross, Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law (Albany, N.Y.,
1981), Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor
Movement in America, 1880-1960 (Cambridge, 1985); William E. Forbath, “The New Deal Constitution in Exile,”
Duke Law Journal 51 (October, 2001), 165; James Gray Pope, “The Thirteenth Amendment Versus the Commerce
Clause: Labor and the Shaping of American Constitutional Law, 1921-1957,” Columbia Law Review, 3-122.
7
Patricia Sullivan, Days of Hope: Race and Democracy in the New Deal Era (Chapel Hill, 1996); Herbert Hill,
Black Labor and the American Legal System, 2d ed. (Madison, 1985), 95-106; Raymond Wolters, Negroes and the
Great Depression: The Problem of Economic Recovery (Westport, CT, 1970).
But the same law that fed unions’ discriminatory force gave the NAACP a tool to fight
with. Amid the vibrant labor-focused civil rights and union activism of the war years, the
NAACP launched a novel legal campaign seeking to puncture the state action barrier on behalf
of black workers.8 In cases before the NLRB and the Supreme Court, NAACP attorneys argued
that, after the New Deal, the economy did not look so private anymore. Instead, they asserted
that the Board’s involvement created sufficient state action to open up the racially exclusive,
segregationist, or disadvantaging practices of both unions and employers. This campaign had met
with mixed results. In 1944, the Supreme Court had ruled that unions had to represent the
interests of black workers in their bargaining units (known as a union’s duty of fair
representation), but the Court had specifically stated that they did not have to let those workers
join their organizations. In explaining why unions had this limited duty, the Court had been
extremely ambiguous as to whether it had anything to do with the Constitution.9
Perry, Donnor, and Mitchell wanted to expand this rule to reach union membership and to
force it out of its legal limbo and onto the solid ground of constitutional right. This would not be
8
On wartime civil rights unionism see, Michael Honey, Southern Labor and Black Civil Rights: Organizing
Memphis Workers (Chicago, 1993); Korstad, Civil Rights Unionism; Robert Korstad and Nelson Lichtenstein,
Opportunities Found and Lost: Labor, Radicals, and the Early Civil Rights Movement, Journal of American History
75 (1988), 786. On the NAACP’s wartime labor litigation, see, Risa Lauren Goluboff, “The Work of Civil Rights in
the 1940s: The Department of Justice, the NAACP, and African American Agricultural Labor” (Ph.D. diss.,
Princeton University, 2003).
9
Steele v. Louisville & Nashville R. Co., 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen and
Enginemen, 323 U.S. 210 (1944); Wallace Corp. v. NLRB, 323 U.S. 248 (1944). Rather than ruling that the
government labor agency or the union was directly bound by the Constitution, the Court ruled instead that if the
labor statutes were not interpreted to implicitly impose the duty of fair representation, they would be
unconstitutional. The decision’s reasoning was ambiguous enough that Justice Murphy expressed confusion. His
concurrence stated, “it cannot be assumed that Congress meant to authorize the representative to act so as to ignore
rights guaranteed by the Constitution. Otherwise the Act would bear the stigma of unconstitutionality under the Fifth
Amendment…. If the Court's construction of the statute rests upon this basis, I agree. But I am not sure that such is
the basis.” Steele, 323 U.S. at 208-09. The NLRB issued several decisions suggesting that it agreed that the
Constitution constrained its actions and implying that it would look disfavorably on racially exclusive unions, but it
sidestepped NAACP attorneys’ claim that the Constitution prevented it from certifying unions with a history of
racial discrimination and rejected their claims that the Constitution prevented it from certifying unions that
segregated black workers into auxiliary locals with limited ability to participate in union and workplace governance
structures. Bethlehem-Alameda Shipyard, Inc., 53 NLRB 999, 1015-16 (1943); General Motors Corp., 62 NLRB
427 (1945); Atlanta Oak Flooring Co., 62 NLRB 973 (1945); Larus & Bro. Co., Inc., 62 NLRB 1075 (1945).
their first collaborative effort to this end. Several months before their fall 1948 meeting, Donnor
had worked closely with Perry and Mitchell when the NAACP had advocated before the Board
on behalf of black members of the United Steelworkers of America, CIO (USWA) who worked
at the National Tube Company in Lorain, Ohio. Once again, Perry had argued that the
Constitution prohibited the Board from putting state power behind a racially exclusive union.10
However, the feuding unions had worked things out on their own before the Board could take
any action. Now, Donnor informed Perry and Mitchell, the CIO was interested in seeking out
similar cases and funding the NAACP to join them as amicus curiae.11 The plan would be for the
NAACP to raise its constitutional argument in front of the Board, and then try to appeal the
Board’s decision all the way up to the Supreme Court.12 Constitutional guarantees, these legal
strategists would argue, had been infused with workers’ statutorily granted right to organize;
black workers did not have to settle for letting a union guard their interests, they were entitled to
directly participate in and influence union and shop governance.
The politics of such a gesture would be delicate. An alliance of Southern Democrats and
Republicans in Congress had placed both the NAACP’s legislative campaigns and the unions’
protective New Deal legislation in its crosshairs. Their recent changes to the NLRA had undercut
union power and taken pointed aim at the left-leaning CIO by requiring all union leadership to
sign an affidavit disavowing Communist Party involvement. By the time Mitchell, Donnor and
Perry met in 1948, the CIO was in disarray as its leadership and locals divided on whether to
fight or oblige the law’s anti-Communist mandate.13 Despite being home to many of the most
10
Marian Wynn Perry to NLRB, January 30, 1948, LCMD, P13-Ser.C-R7: 93-95.
Individuals and organizations who are not parties to a case can petition the court, or in this case, an administrative
agency, to file a brief and present arguments in the case as amicus curaie.
12
Marian Wynn Perry to Thurgood Marshall, September 17, 1948, LCMD, P13-Ser.A-R14: 452.
13
Robert H. Zieger, The CIO, 1935-1955 (Chapel Hill, 1995), 253; Korstad, Civil Rights Unionism, 352, 356-67;
Gilbert J. Gall, Pursuing Justice: Lee Pressman, the New Deal, and the CIO (Albany, NY, 1999), 227-31. On the
11
notoriously lily-white unions, the hostile political environment meant that the NAACP needed to
keep the CIO’s rival, the American Federation of Labor (AFL) as a friend. Ms. Wynn Perry
expressed her concern to Donnor. The NAACP, she noted, “would not [want to] be in the
position of taking sides in a battle between the AF of L, CIO, or an independent union.”14
Nonetheless, she recommended that the proposal be sent to the NAACP Board for a vote and that
the organization launch a publicity campaign on the issue.
No record of that vote exists, and quite likely it never occurred. Nonetheless, the spirit of
the plan lived on as the NAACP worked to redress discrimination in a range of industries using a
variety of legal tools. Sixteen years and a circuitous labor legal campaign later, in 1964 the
NAACP finally won its constitutional claim to African-Americans’ “union rights” from the
NLRB.15
The NAACP’s legal struggle for workplace rights challenges the conventional
organizational history of the NAACP and, more importantly, expands our understanding of the
civil rights era constitutional changes it won. The NAACP’s efforts to win economic rights for
African-Americans created new sites for constitutional meaning-making. Workers and the
attorneys who advocated on their behalf pressed their claims off conventional histories’
courtroom focused constitutional map, making many of their arguments in the technical universe
of the NLRB.16 By leveling its claims against unions and employers, the NAACP asserted a
Taft-Hartley Act and debates about its significance for the labor movement, see, Tomlins, The State and the Unions;
Nelson Lichtenstein, “Taft Hartley: A Slave-Labor Law?,” Catholic University Law Review (Spring, 1998), 763.
14
Marian Wynn Perry to Thurgood Marshall, September 17, 1948, LCMD, P13-Ser.A-R14: 452.
15
Hughes Tool, 147 NLRB 1573 (1964). “Union rights” is taken from “N.L.R.B. Aide Urges Ouster of Hughes’
Unions for Racism,” New York Times (March 1, 1963), 5.
16
Scholarly attention to the life of the Constitution outside of the courts has grown dramatically in recent years. This
paper broadens this literature’s view of the potential sites for governmental constitutional action beyond Congress,
the Executive, and the Judiciary by recovering constitutional argumentation in administrative agencies. For
examples of the emerging literature see, Larry D, Kramer, The People Themselves: Popular Constitutionalism and
Judicial Review (New York, 2004); Keith E. Wittington, “Presidential Challenges to Judicial Supremacy and the
Politics of Constitutional Meaning,” Polity 33(3): 2001, 365; Keith E. Wittington, Constitutional Construction:
public right in an ostensibly private realm. In so doing, it participated in a forgotten battle to
extend the Constitution’s reach beyond Jim Crow laws to the network of customary practices that
excluded and subordinated African Americans as workers and consumers, and thus as citizens.17
When the NAACP brought these claims, it did not only argue for workers’ right to join unions
and access skilled jobs, but also for workers’ right to “participate” and “influence” a union’s
internal practices and its negotiations with an employer.18 These constitutional claims to a
workplace voice recover rights-focused legal action that hoped to facilitate, not thwart, classbased collective action.19
Yet, depending on whom you ask, civil rights organizations’ legal challenges to racial
discrimination in the workplace either died with the end of World War II or were born in the
1960s amid the burgeoning of black protest politics.20 Two presentist distortions have helped
obscure the workplace legal activism of the late 1940s and 1950s. First, the Supreme Court’s
Divided Powers and Constitutional Meaning (Cambridge, MA, 1999); Robert C. Post and Reva B. Siegel,
“Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave
Act,” Yale Law Journal 112:8 (2003), 1943.
17
Historians are just beginning to recover the NAACP’s postwar direct action campaigns against racially exclusive
customary practices. See, Lizabeth Cohen, A Consumers’ Republic: The Politics of Mass Consumption in Postwar
America (2003); Thomas Sugrue, “Affirmative Action from Below: Civil Rights, the Building Trades, and the
Politics of Racial Equality in the North, 1945-1969,” The Journal of American History (June, 2004), 145. Lizabeth
Cohen argues that consumerism became the paradigm expression of citizenship in the postwar period.
18
Marian Wynn Perry to Thurgood Marshall, September 17, 1948, LCMD, P13-Ser.A-R14: 452.
19
For a recent example of labor historians’ common argument that rights based legal action and laws undermine the
legitimacy, vibrancy, and possibility of collective action, see Nelson Lichtenstein, State of the Union: A Century of
American Labor (Princeton, 2002). Some historians writing in the new school of civil rights labor history have
begun to trouble this dichotomy. See, Honey, Southern Labor; Korstad, Civil Rights Unionism, 7; Nancy MacLean,
“Redesigning Dixie with Affirmative Action: Race, Gender and the Desegregation of the Southern Textile Mill
World,” In Gender and the Southern Body Politic, Nancy Bercaw, ed. (Jackson, MS, 2000).
20
Recent works that argue that labor-related civil rights activism died in the years immediately following World
War II include Korstad, Civil Rights Unionism. Risa L. Goluboff makes a similar argument about class-infused civil
rights litigation. “’We Live’s in a Free House Such As It Is,’: Class and the Creation of Modern Civil Rights,”
University of Pennsylvania Law Review 151(2003), 1977. Those arguing that labor related civil rights legal activism
was born in the 1960s include Harvard Sitkoff, The Struggle for Black Equality, 1954-1992 (2d ed.), (New York,
1993); Jack Greenberg, Crusaders in the Court: How a Dedicated Band of Lawyers Fought for the Civil Rights
Revolution (New York, 1994). Recent exceptions acknowledge civil rights organizations’ persistent lobbying efforts
in support of a Fair Employment Practices Act during the 1950s but do not integrate this with efforts to win rights
under already existing laws. See, Paul Moreno, From Direct Action to Affirmative Action: Fair Employment Law
and Policy in America, 1933-1972 (Baton Rouge, 1997). On the exclusion of labor in civil rights historiography, see
Jacquelyn Dowd Hall, “The Long Civil Rights Movement and the Uses of History,” Journal of American History
(forthcoming, copy on file with the author).
1954 decision in Brown v. Board of Education has come to overshadow stories of civil rights
constitutional change, sweeping away our memory of all preceding, concurrent and competing
trajectories.21 Second, Title VII of the 1964 Civil Rights Act, which guaranteed equal
opportunities in jobs and unions, has become the dominant mode for imagining antidiscrimination claims in the workplace, replacing other ways of legally redressing economic
racial discrimination.22 These historical conventions have relied on and contributed to an
accepted wisdom: that the major postwar civil rights legal agitator, the NAACP, took a
conservative Cold War turn and forsook the interests of working-class African-Americans.23
Simply put, these conventions and this wisdom are wrong. Instead, the NAACP pursued a hot
battle with unions and employers throughout this ostensibly Cold decade.
Brown v. Board of Education, 347 U.S. 483 (1954). This is Risa Goluboff’s path-breaking thesis in, “The
Department of Justice,” 1-2. However, the degree to which the meaning and sweep of Brown remained up for grabs
following its decision is only beginning to be understood. Reva B. Siegel, “Equality Talk: Antisubordination and
Anticlassification Values in Constitutional Struggles Over Brown, Harvard Law Review 1470(2004), 117. The many
years it took for Brown to mean what today we take it to have meant since the day it was decided suggests the
importance of extending Goluboff’s work beyond the Court’s landmark decision. This paper builds on Goluboff’s
argument, showing that the alternate vision and workplace reach of pre-Brown civil rights constitutionalism
persisted in new forms and unexplored fora during and after LDF’s successful assault on Jim Crow laws.
22
Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 et. seq. (1964). Title VII of the Act banned racial
discrimination by unions and employers. Today, Title VII and subsequent anti-discrimination statutes take up nearly
all the pages in contemporary casebooks on employment discrimination. See, e.g., Cases and Materials on
Employment Discrimination, Michael J. Zimmer et. al., (eds.) (New York, 2003).
23
In civil rights histories, this critique of the NAACP is commonplace. See, e.g., Korstad, Civil Rights Unionism;
Korstad and Lichtenstein, “Opportunities Found and Lost,” 786; Harvard Sitkoff, “Racial Militancy and Interracial
Violence in the Second World War,” Journal of American History 58(1971), 661; Bruce Nelson, “Organized Labor
and the Struggle for Black Equality in Mobile During World War II”, Journal of American History 80 (1993), 952.
Legal historians are just beginning to question the NAACP’s pedestal placement. Goluboff, “We Live’s in a Free
House;’” “The Department of Justice;” and “The Work of Civil Rights in the 1940s: Purging Labor Related Cases
from the NAACP’s Legal Strategy,” paper given at the Yale Law School Legal History Forum (April 12, 2004)
(paper on file with the author). However, even legal historians who have helped lionize the NAACP presume that
workplace related litigation played no part in the organization’s postwar constitutional legacy. Tushnet, Making
Civil Rights Law, 76-80. Recent works have begun to fill in this gap through footnotes and asides referencing the
NAACP’s work on labor related issues. MacLean, “Redesigning Dixie,” note 4; Timothy Minchin, The Color of
Work: The Struggle for Civil Rights in the Southern Paper Industry, 1945-1989 (Chapel Hill, 2001), 52. Martha
Biondi, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City (Cambridge, MA, 2003) and
Gilbert Jonas, Freedom’s Sword: The NAACP and the Struggle Against Racism in America, 1909-1969 (London,
2005) go the furthest in challenging the organization’s Cold War abandonment of labor issues. However, while both
books address labor advocacy or use legal sources, neither provides a legal history, leaving the story of the
NAACP’s Cold War labor constitutionalism as yet untold.
21
Throughout the 1950s, the NAACP wended its way through the postwar political
minefield of Cold War anti-communism, Southern Democrats’ massive resistance, and growing
Republican antipathy towards the NLRB. Despite the treacherous terrain, the NAACP and the
workers on whose behalf it advocated made their claims to unions, employers, the Board,
Presidential commissions, and the courts. Along the way they generated a labor constitutionalism
that sought not only jobs, but also to invigorate and cross-fertilize race and class-based social
change organizations for decades to come.
Forging a Workplace Constitutionalism
All the way back in 1935, when Congress was considering the bill that would become the
National Labor Relations Act, the NAACP and other national civil rights organizations lobbied
vigorously to include a ban on racial discrimination by unions in this cornerstone New Deal
law.24 Despite losing this battle, the NAACP did not give up on the NLRA. As many lily-white
locals tried to use the new law to consolidate their racially exclusive hold on jobs and union
power, the NAACP used the Act to fight the racially exclusive, segregating, and subordinating
practices of unions and employers. During World War II, NAACP attorneys’ claim that black
workers had a constitutional right to join and participate in unions that benefited from New Deal
era labor laws and to access the jobs these unions contracted for met with mixed success in the
Supreme Court and the NLRB. In both fora, while black workers gained some promise of legal
protection against union and employer discrimination, these workers’ right, constitutional or
otherwise, to a workplace voice was left unfulfilled.
24
For discussion of these lobbying efforts and the rejected amendments put forth by civil rights organizations, see
Moreno, From Direct Action; Hill, Black Labor, 100-106.
Nonetheless, NAACP attorneys saw even these partial gains as augurs of future success.25
These hopes were reinforced when, in 1946, the Wichita, Kansas NAACP branch won a clear
constitutional victory for black workers’ right to a full-voice in workplace collective action. The
Wichita attorneys charged that it was unconstitutional for the government certified Brotherhood
of Railway Carmen to segregate black workers into an auxiliary local where they could not vote,
participate in union policy decisions, or act as and select delegates for union conventions.
“Certainly the denial to a workman, because of race, of an equal voice in determining issues so
vital to his economic welfare, under the Railway Labor Act, is an infringement of [the
constitutional right to] liberty if indeed it may not also be said to be a deprival of property
rights,” the Kansas Supreme Court ruled.26 A state court decision was not legally binding on the
Board or the nation’s federal courts. In addition, even the Wichita NAACP attorneys
acknowledged that the court had taken “an enlightened and an advanced position on this
question.”27 Nonetheless, as World War II wound to a close, these wartime decisions seemed to
“mark a new era in the protection of minority rights in collective bargaining.”28
The NAACP’s national office responded to these partial successes by institutionalizing
its commitment to labor and employment civil rights.29 In late 1945, the LDF hired Marian
Wynn Perry, a young Department of Labor attorney, a former vice-president of the Social
Service Employees’ Union-CIO, Local 19, and a participant in a range of left-leaning labor, civil
rights, and legal organizations.30 Perry was put in charge of pursuing LDF’s burgeoning
Goluboff, “The Department of Justice,” 353.
Betts v. Easley, 169 P.2d 831, 843 (1945). This decision involved the Railway Labor Act not the NLRA.
However, according to the U.S. Supreme Court these two labor laws granted similar rights to workers and imposed
similar duties on unions. Wallace Corp. v. NLRB, 323 U.S. 248 (1944).
27
Z. Wetmore to Robert L. Carter, August, 3, 1946, LCMD, P13-Ser.C-R7: 798.
28
Pauli Murray, “The Right to Equal Opportunity in Employment,” California Law Review 33 (1945), 46.
29
“Work of the National Office and Branches of the NAACP in the Field of Employment,” April 16, 1946, LCMD,
P18, Ser.A, R7: 762-65.
30
Marian Wynn Perry, June 22, 1946, LCMD, P18-Ser.A-R7: 780.
25
26
employment and housing discrimination litigation, including pressing the NAACP’s labor
constitutional claims in front of the NLRB.31 That same year, the national NAACP office created
a Labor Department and named Clarence Mitchell its first Labor Secretary. Mitchell was charged
with coordinating labor strategies within the NAACP and advocating with proliferating
government agencies, unions, and employers on behalf of members and workers. Meanwhile, the
organization’s Washington Bureau took up lobbying for labor legislation, including enforcing the
Reconstruction Amendments’ promise of racial equality through the passage of a federal Fair
Employment Practices Act, fighting anti-union amendments to the NLRA, and pressing for its
own anti-race-discrimination amendments to the nation’s labor laws.32
Workplace Constitutionalism and the Rise of a Cold War Political Economy, 1949-1952
Even as the organization seemed poised to bring its fledgling labor constitutionalism to
fruition, its efforts were diverted by a rapidly shifting legal and political terrain. As an anti-labor,
anti-civil rights coalition of Republicans and Southern Democrats strengthened in Congress, the
tentative wartime romance between the NAACP and the rapidly growing national unions became
a political necessity. First the Congressional coalition dismantled the wartime Fair Employment
Practices Commission.33 Next, it set its sight on the NLRA. In 1947 Congress passed the TaftHartley Act, codifying what were widely understood to be anti-union reforms.34 Beginning with
this legislative battle, the NAACP threw what political weight it had behind labor’s legislative
agenda, asking in turn for unions’ support of its broad anti-discrimination program.35 Loyalty-
Thurgood Marshall to Officers of NAACP Branches, November 14, 1945, LCMD, P18-Ser.A-R7: 756-57; “Work
of the National Office and Branches,” April 16, 1946, LCMD, P18-Ser.A-R7: 762-65; Labor Department, Monthly
Report, August 13, 1946, LCMD, P13-Ser.A-R9: 430.
32
Denton L. Watson, Lion in the Lobby: Clarence Mitchell, Jr.’s Struggle for the Passage of Civil Rights Laws
(New York: William Morrow and Company, Inc., 1990).
33
Moreno, From Direct Action.
34
See, supra note 13
35
For NAACP opposition to it and labor’s common Congressional foes, see, Executive Office Reports, February 14,
1949, LCMD, P1-R3: 889-90. On its recruitment of unions’ support for its civil rights legislative campaigns see,
31
security programs, House Un-American Activities Committee investigations, and the rising tide
of McCarthyite witch hunts, the mainstays of domestic Cold War governance, often conflated
civil rights, union, and Communist activity, pushing the major unions and the NAACP further
into the same defensive corner.36
Many in the organization also genuinely believed that unionization was critical to black
Americans’ gaining full economic and political citizenship. Year after year, the national officers
consistently and at times emphatically urged all “members who are eligible to do so to join a
union and take an active part in its affairs.”37 At the same time, the organization increasingly
turned to unions both to develop its own membership base and to solicit contributions. Largely
due to the young upstart energy of Herbert Hill, a Jewish kid from New York City, a graduate of
New York University and the New School for Social Research, and a former organizer for the
USWA, the NAACP began an increasingly systematic union-focused campaign. Between 1949
and 1952, Hill traveled the country speaking at union conventions and NAACP conferences
throughout the Northeast, Midwest, South and West. He pushed unionists to start, join, and
support NAACP branches and pressed NAACP branches to develop labor campaigns and local
Herbert Hill to Charles St. Hill, letter, March 3, 1949, LCMD, P13-Ser.A-R20: 341. Throughout the postwar era up
until the passage of the Civil Rights Act, union leaders regularly testified in Congress on behalf of civil rights
legislation while the NAACP supported unions’ legislative agenda. Watson, Lion in the Lobby.
36
For NAACP declarations that it and labor shared common enemies, see William H. Hastie, “The Government’s
Responsibility for Civil Rights,” July 13, 1949, LCMD, P1-R12: 678-683; 43rd Annual Convention Resolutions,
June 28, 1952, LCMD, P1-Supp.1-R5: 172-186. On anti-communism and civil rights see, George Lewis, White
South and Red Menace: Segregationists, Anticommunism and Massive Resistance, 1945-1965 (Gainesville, 2004);
Wood, Jeff. Black Struggle, Red Scare: Segregations and Anticommunism in the South, 1948 – 1968 (Baton Rouge,
2004). On anti-communism and unions see, Harvey Levenstein, Communism, Anticommunism and the CIO
(Westport, 1981); David Oshinsky, Senator Joseph McCarthy and the American Labor Movement (Columbia, Mo.,
1976). Goluboff makes a similar argument regarding the NAACP’s response to the early Cold War political climate,
though she argues that it resulted in a complete cessation of labor litigation. “The Department of Justice,” 344-54.
37
This was a stock phrase of the NAACP’s annual resolutions beginning in 1948. See, e.g., Annual Convention
Records, June 26, 1948, LCMD, P1-R12: 356-59; Annual Convention Records, June 23, 1950 LCMD, P1-R12: 942955; Annual Convention Records, June 28, 1952, LCMD, P1-Supplement (Supp.)1-R5: 172-186. For statements that
the NAACP was anti-union discrimination not anti-union and asserting that unionization and fair employment were
the surest path to full citizenship see, Clarence Mitchell, July 14, 1949, LCMD, P1-R12: 684-693; Charles Hamilton
Houston, July 14, 1949, LCMD, P1-R12: 694-707; Walter White, June, 1950, LCMD, P1-R12: 1070-77.
union alliances. Through Hill’s initiative and extensive union contacts, the national NAACP
developed a strong union presence at its Annual Conventions and a growing interest in local and
international unions’ financial contributions.38 Thus, as the political delicacies noted by Perry in
1948 grew more complex over the succeeding years the NAACP had many reasons to approach a
potentially antagonizing legal campaign against unions with caution.
Even as the evolving political landscape created new constraints on the NAACP’s efforts
to win a labor constitutionalism, the legal framework within which such a campaign would have
to be pursued was also rapidly changing. In the late 1940s and 1950s political and legal
constraints required the NAACP to pursue labor anti-discrimination complaints in burgeoning
non-court fora. By the late 1940s, New York’s pioneering state FEPC drew the bulk of Marian
Perry’s energies away from the NLRB and the Association’s labor constitutional claims.39 The
law of the land also required NAACP attorneys and officers to guide workers through the
increasingly elaborate array of union Civil Rights Departments and grievance mechanisms
before bringing a claim before the Board or the courts. In addition, the AFL and many CIO local
unions had a long and deep opposition to using the state and the courts for anything other than
protection of their organizing campaigns and their negotiations with employers. 40 The
38
For Hill biography see, Herbert Hill, undated, LCMD, P13-Ser.A-R20: 328-29; Nelson, Divided We Stand, 215.
Herbert Hill was hired by the NAACP to solicit contributions and memberships from union groups after he had
raised fifteen hundred dollars from New York unions during a ten day fund-raising campaign in the spring of 1949.
Lucille Black to Walter White, March 31, 1949, LCMD, P13-Ser.A-R20: 345. Hill pitched NAACP union activity to
Roy Wilkins not only as a way to raise money, but he also argued that “[t]he active and sustained participation of the
NAACP on the lower levels of the union movement would…be a means of making known the program of the
Association to the most highly organized and articulate group in American life.” Herbert Hill to Roy Wilkins, April
12, 1949, LCMD, P13-Ser.A-R20: 351-3. As of November, 1949, eight months after he began work for the NAACP,
Hill had raised over $11,600 dollars for the organization through his union campaigns. Herbert Hill to Gloster
Current, September 23, 1949, P13-Ser.A-R20: 433-34; Herbert Hill, November, 1949, LCMD, P13-Ser.A-R20: 47880. One gets a sense of the significance of these contributions by comparing them to Hill’s annual salary of $2,700
dollars. Roy Wilkins to Mrs. Waring, April 14, 1949, LCMD, P13-Ser.A-R20: 350. On the NAACP’s cultivation of
close financial and political ties with the labor movement, see Jonas, Freedom’s Sword, 236-38.
39
“Work of the National Office and Branches of the National Association for the Advancement of Colored People
in the Field of Employment-New York,” April 16, 1946, LCMD, P18-Ser.A-R7: 762.
40
For examples of unions’ norm against litigation, see Nelson, Divided We Stand, 122, 125.
Association seemed to recognize and support its allies’ self-help norm, repeatedly urging its
members to work within unions to fight the “color bar” and only sporadically, and always as a
last resort, publicly sponsoring resort to the courts.41
In addition, when the chance of Congress passing a federal fair employment law dimmed,
the NAACP exerted its pressure on President Truman to create fair employment policies. Other
than Truman’s seminal order desegregating the military, all the organization won were a number
of fair employment offices within various federal departments and agencies and a meager fair
employment executive order.42 “Disappointing” as these may have been, the NAACP did not
want the President to think they had been in vain. The organization brought cases to these
government departments, committees, and boards hoping to strengthen these legal avenues from
within even as they used their inadequacies to fight for more comprehensive and effective
national laws.43 Thus, in the postwar years, the sites for workplace legal argument proliferated,
stretching the NAACP’s legal resources thin and diverting its attentions away from its unionfocused constitutional claims.
Most years, the NAACP resolutions advised its members “where there are still color bars in unions…to use all the
pressure they can, from inside organized labor, and by the use of existing fair employment laws, to erase these
restrictions.” Annual Convention Records, June 23, 1950 LCMD, P1-R12: 942-955. In 1953 the resolutions also
began endorsing “publicity, and wherever possible, court action to end such racial practices.” Annual Convention
Records, June 27, 1953, LCMD, P1-Supp.1-R6: 359. By 1956, this was narrowed to “wherever necessary and
possible, by court action under the direction of our Special Counsel and after exhausting other administrative
remedies.” Annual Convention Records, June 26, 1956, LCMD, P1-Supp.1.1-R4: 292.
42
The first orders which Truman issued in 1948, Executive Orders 9980 and 9981, desegregated the military and
created a Fair Employment Board to handle charges of discrimination in federal employment. After extensive
pressure by the NAACP and others, he augmented these in 1951 with Executive Order 10308, which created a
toothless President’s Government Contract Compliance Committee (PGCCC) that was supposed to ensure that all
work conducted under federal contracts occurred free from racial discrimination. For NAACP pressure on Truman,
see, Walter White, November 1951, LCMD, P1-Supp.1-R2: 104. On Truman’s executive orders see Moreno, From
Direct Action to Affirmative Action, 178-79; Michael R. Gardner, Harry Truman and Civil Rights: Moral Courage
and Political Risks (Carbondale, 2002).
43
Walter White used the qualifier “disappointing” to describe Truman’s 1951 Executive order. Walter White,
March, 1951, LCMD, P1-Supp.1-R2: 35. Walter White used the fruitlessness of the NAACP’s complaints to the
PGCCC in his Congressional testimony in favor of Fair Employment Practices legislation. Executive Office
Reports, May 12, 1952, LCMD P1-Supp.1-R2: 235. These Executive branch programs also targeted employers, not
unions, providing the NAACP a way to fight workplace discrimination without taking a union to court.
41
At the same time, the NLRB was becoming an increasingly inhospitable host to the
organization’s divided efforts. In 1946, the Board made clear that it did not see anything
inherently suspect in unions’ racially exclusive or segregationist policies.44 However, the 1947
Taft-Hartley Act potentially changed this rule. The Act included some general language barring
unions from discriminating against workers on the basis of union membership. While this was
not the anti-discrimination provision the NAACP had fought for, the Association held out hope
that it might create a legal wedge in their campaign. Over the next two years, the Board
continued to issue strong language that it would sanction racially discriminatory unions, yet it
made clear in a series of decisions that it did not see the new amendments as any sort of mandate
to action.45 Referring to Taft-Hartley’s discrimination language as a “pure unadulterated fake,”
Clarence Mitchell ironically described the Board’s interpretation of the Act’s amendments to
attendants at the NAACP’s 1949 Annual Convention. “In each of these cases the National Labor
Relations Board announced a principle which may be summarized in this fashion. ‘Unions may
exclude colored people from membership, they may segregate them into separate locals and they
may refuse to let them share in the full benefits of the union, but no union may discriminate
against them because of race.’”46
Nonetheless, the NAACP continued to pursue a regionally diverse and strategically
varied campaign against employer and union racial discrimination. In 1948, the organization
affirmed its commitment to “support every effort made within the ranks of labor to get rid of the
color bar in the unions where it still exists … [and to] support to the full the policy of our legal
44
Labor Department, Monthly Report, August, 31, 1946, LCMD, P13-Ser.A-R9: 430.
Veneer Products, Inc., 81 NLRB 492 (1949); Plywood-Plastics Corp., 85 NLRB 265 (1949).
46
Clarence Mitchell, July 14, 1949, LCMD, P1-R12: 691.
45
department to oppose the color bar by court action.”47 In 1949, the Legal Department, which was
seeking to increase the national coordination of the organization’s legal strategy, listed
employment discrimination among the top litigation targets branch and regional attorneys were
encouraged to pursue.48
Over the next few years, the NAACP continued its workplace advocacy, even as the
organization’s adjustment to the early Cold War political and legal landscape meant that much of
this work was pursued in arenas other than the Board and the courts. Between 1949 and 1952,
NAACP staff supported employment related direct action campaigns and negotiated ends to the
color bar with unions, corporations, and government employers. In addition, NAACP lawyers
represented workers in front of state fair employment committees, presidential commissions,
union grievance committees, and even, from time to time, the Board and the courts. These efforts
spanned the nation and reached industries ranging from agriculture to automobile production.49
Despite this diversity, five major industries and their unions both dominated and defined
the NAACP’s labor advocacy: oil, maritime, construction, rail, and steel. In the early Cold War
years, no one industry dominated. However, as the Association’s work spun out across the 1950s
Annual Conference Records, June 26, 1948, LCMD, P1-R12: 356-59. Conference of NAACP Lawyers’ Report to
the 40th Annual Conference, undated, 1949, LCMD, P1-R12: 575-77; Charles Hamilton Houston, “The Legal
Struggle for Protection of Minority Workers’ Rights on American Railroads,” July 14, 1949, LCMD, P1-R12: 706.
48
Conference of NAACP Lawyers’ Report to the 40th Annual Conference, undated, 1949, LCMD, P1-R12: 575-77.
49
For examples see Report of the Washington Bureau, November, 1950, LCMD, P1-R7: 1003 (recounting worker
advocacy with a South Dakota dam project, the Birmingham, Alabama Post Office, the Department of the Army, the
Federal Works Agency, and the Bethesda Naval Hospital); Executive Office Reports, March, 1951,LCMD P1Supp.1-R2: 23 (including advocacy with a Virginia taxi company and the Bureau of Agricultural Economics);
Executive Office Reports, June 1951, LCMD P1-Supp.1-R2: 71 (describing advocacy at the Houston, Texas Cico
Steel, the Washington D.C. police department, Bendix Aviation Corporation in Kansas City, Missouri, the Naval
Ordnance Plant in Indianapolis, Indiana, and the Delaware Chrysler Tank Arsenal Plant); Executive Office Reports,
June 9, 1952, LCMD P1-Supp.1-R2: 260 (reporting on collaborative work opening jobs and promotions to black
workers at the Philco Plant in Philadelphia). In 1952, the Legal Department helped local NAACP attorneys
challenge state civil service examiners’ denial of exams to black applicants in Alabama and Texas. They also
represented workers from the Kelly Field Air Base in front of the Civil Service Commission. Legal Department
Monthly Report, January 1952, LCMD, P1-Supp.1-R2: 319-26; Legal Department Monthly Report, March 1952,
LCMD, P1-Supp.1-R2: 333-43; Legal Department Monthly Report, April 1952, LCMD, P1-Supp.1-R2: 356-61;
Executive Office Reports, June 9, 1952, LCMD P1-Supp.1-R2: 257. See also, Jonas, Freedom’s Sword, 240-53.
47
and into the 1960s, particular industries dominated at particular times. Skipping forward to these
eras of dominance and then looping back to these foundational years offers a snapshot of the
NAACP’s evolving labor legalism and ultimately leads to the organization’s vindication of
African American’s constitutionally-based union rights.
Oil and Water, 1953-1956
In 1953, after the last gasps of the NAACP’s postwar legislative hopes had expired with
the election of Dwight Eisenhower and the formation of a seemingly unbreachable alliance in
Congress between its foes and timid friends, the NAACP refocused its attentions on winning
constitutional workplace claims before the NLRB. In the spring of 1953, the Department held a
one-day conference to consider possible legal claims against a range of unions’ discriminatory
practices, from closed-shop agreements that required African-American workers to join
segregated locals to the network of union-employer agreements that tracked black workers into
the lowest paying, lowest skilled jobs. Among the questions the legal staff discussed was
whether government certified unions were state actors bound by the Constitution.50 Then, at the
1953 Annual Convention that June, the Legal Department took its work to a national audience.
Robert L. Carter, a NAACP staff attorney hired on with Marian Wynn Perry in 1945, conducted
a workshop at a convention side-meeting for attorneys from across the nation on “Legal
Techniques in Civil Rights Cases” that included challenges to segregation in the workplace.51
The lawyers were not the only ones focusing on unions—both as a boon and a
boondoggle for African American workers. At Herbert Hill’s instigation, unions were prominent
at the convention which was held in St. Louis, the city that had spawned an NAACP affiliated
attorney’s recent Supreme Court win on behalf of black railway porters. A massive turn-out
50
Legal Department Report, May 1953, LCMD, P1-Supp.1-R2: 515-23.
Legal Department Report, June 1-15 1953, LCMD, P1-Supp.1-R2: 524-33; Thurgood Marshall and Robert L.
Carter to Lawyers’ Conference Participants, memo, June 12, 1953, LCMD, P1-Supp.1-R7: 810.
51
effort led to high attendance for the first “National Labor Conference” modeled after the
lawyers’ annual side-meetings. NAACP unionists could blend national and regional NAACP
activities with a host of labor-focused sessions, speeches, and meetings with trade union
leaders.52 The convention resolutions also emphasized the NAACP’s ongoing support for the
anti-Communist major unions.
However, the 1953 convention resolutions also pushed back against some of the
organization’s labor allies. One section noted the persistent explicit and tacit racial exclusion
practiced by several AFL unions and called on the AFL leadership to put an end to these
practices. In addition, the organization put the labor movement on notice that it was prepared to
intervene to assist any “democratic non-Communist union pledged to secure equal job rights for
the Negro worker” win government certification in a competition against a racially
discriminatory union.53 That fall, Herbert Hill formulated a ten-year “Plan to Secure the Full
Integration of Negro Workers within the Organized Labor Movement.” First on his list was
making it the law that government certified unions “are amenable to the requirements of the
Constitution.”54 Within months, Hill found his first chance to actualize his plan.
By 1954, Hill had developed a long-standing relationship with black oil-workers. The
NAACP had an acute awareness of the discrimination that these workers faced in the nation’s oil
fields. In one of his first 1949 campaigns for the NAACP, Hill had used a rally against
segregated schools to inspire an Argo, Illinois local of the Oil Workers International Union
“Major Trade Unions Send Representatives to Attend National Trade Union Conference of the 44 th Annual
Convention of the NAACP,” Annual Convention, June 18, 1953, LCMD, P1-Supp.1-R8: 917; Patrick E. Gorman,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, “Organized Labor, the Negro and
Intolerance,” June 25, 1953, LCMD, P1-Supp.1-R8: 780-93. For an example of one trade unionist and southern
NAACP leader’s convention activities, see Charles C. Webber, Annual Convention, delegates report, June, 1953,
LCMD, P1-Supp.1-R8: 921-23. On the NAACP’s anti-Communist Cold War policies and Thurgood Marshall’s role
as an FBI Informant beginning in the late 1950s, see Jonas, Freedom’s Sword, Ch. 5.
53
Annual Convention Records, June 27, 1953, LCMD, P1-Supp.1-R6: 354-65.
54
Herbert Hill to Walter White, October 6, 1953, LCMD, P13-Ser.A-R20: 627-30.
52
(OWIU) to start an NAACP branch.55 In December of 1952, Hill conducted mass meetings in
Beaumont, Galveston, Fort Worth, and Texas City, Texas during a southern speaking tour. While
in Beaumont, Hill also conducted a series of meetings with the segregated union locals
representing oil workers at the Magnolia Oil Refinery. After several sessions involving OWIU
Local 229 (the all-black local many of whose Board members happened to also be on the local
NAACP branch’s Board), District and national OWIU officials, and the all-white OWIU Local
243, Hill secured an agreement. The OWIU’s District Director promised that Local 229 could
dissolve and integrate into Local 243. Local 229 took the first step in this process when it passed
a formal resolution requesting that it be “amalgamated” into the all-white Local 243.56 The aim
of amalgamation was not only integration of membership, but also of seniority and promotion
lines so as to open up skilled jobs to black workers.
As of 1954, Hill’s modest effort to integrate one of the last remaining segregated OWIU
locals in the nation was on its way to becoming the first step in a much more elaborate and
ambitious litigation strategy. True to his expressed faith in the union movement, this strategy was
undertaken in cooperation with the CIO and the OWIU. In March of 1954, Robert L. Carter, the
NAACP staff attorney who had presented the employment discrimination workshop at the 1953
annual convention, heard back from a National CIO official whom Carter had sent a copy of a
complaint the NAACP was preparing to file against the OWIU International and its Houston,
Texas Local 367. The CIO official wrote that he approved the NAACP plan to constitutionally
challenge the Local’s preservation of segregated lines of promotion despite its integrated
membership. Noting that the practices at the local’s Houston Shell Oil Company plant existed
For NAACP’s recognition of discrimination in the West Coast’s oil industry see, Jack Greenberg to Josephine
Peters, June 19, 1950, LCMD, P13-Ser.C-R7: 565. On the Argo action and its resulting in a new branch, see,
Herbert Hill to Gloster Current, October 21, 1949, LCMD, P13-Ser.A-R20: 461; “Mass Rally,” October 26, 1949,
LCMD, P13-Ser.A-R20: 463; Herbert Hill to Gloster Current, February 2, 1951, LCMD, P13-Ser.A-R20: 502-03.
56
Herbert Hill to A. Maceo Smith, February 2, 1953, LCMD, P13-Ser.A-R20: 568-69.
55
throughout the oil industry, the CIO official cautioned that it was important that the NAACP take
similar action against NLRB certified Independent and AFL oil worker unions to prevent “the
possibility of a group of [white] workers in Shell Oil from agitating to go independent or into the
AFL” should the NAACP win its claim.57
In April of 1954, the last remaining segregated OWIU locals, representing workers at the
nearby Port Arthur, Texas Gulf Oil Corporation plant, ran up against a similar problem. The
locals had begun to amalgamate earlier that year, joining to elect a negotiating committee. With
white workers holding a clear numerical majority, the elections produced an all-white committee.
In its negotiations with Gulf Oil, the committee agreed to separate seniority lines for the nearly
all-black Labor Division and the all-white Operating Mechanical Division despite earlier
promises that the amalgamated local would negotiate integrated lines of seniority and promotion.
On May 25, 1954, less than ten days after the Supreme Court decision in Brown v. Board of
Education, a local Houston attorney filed a suit in federal court charging the Port Arthur allwhite Local 23 and Gulf Oil Corporation with violating the constitutional rights of John Syres
and all other members of the African-American Local 254. The national office of the OWIU,
represented by its general counsel, joined Syres and the other members of Local 254 in their suit
against the white Local.58
Thus commenced a nearly year-long scramble to secure plaintiff members of AFL and
Independent oil workers’ unions so that the NAACP could launch court and NLRB constitutional
complaints that, it hoped, would end segregation in membership and promotion throughout the
South. When the NAACP came to Dallas for its annual convention that June, the legal staff held
57
George L-P Weaver to Robert L. Carter, March 5, 1954, LCMD, P13-Ser.C-R4: 934; Holt v. Oil Workers
International Union, No. 430-77, undated, LCMD, P13-Ser.C-R4: 95-39.
58
Syres v. Oil Workers International Union, Local 23, LCMD, May 25, 1954, P13-Ser.C-R4: 942-53.
a special meeting about the oil cases and Hill immediately went about urging branch officials to
help the organization recruit plaintiffs.59
By January of 1955, Hill and Carter had secured plaintiffs and begun exhausting
administrative procedures in Texas and Louisiana AFL and Independent oil worker locals.60
However, one major southern oil refining region remained to be canvassed: Arkansas. In
February, Hill set off for an investigatory “tour of [the] deep south.” Among his stops were Little
Rock and El Dorado. There he found a similar pattern of white dominated integrated unions that
bargained for rigidly segregated hiring and lines of progression. At the El Dorado Lion Oil
Company, Hill noted, even the time clocks were segregated. By March, seven El Dorado
workers, members of both the AFL’s International Union of Operating Engineers, Local 381 and
OWIU, Local 434 had signed on to the suit.61 Throughout this period of recruitment, both Hill
and Carter kept in close touch with the national CIO office.62
The legal team was ready to commence the coordinated legal actions that Hill believed
would “be a historic step forward in creating a new body of labor law to protect the rights of
Negro workers.”63 In April of 1955 they filed a series of complaints with Eisenhower’s FEPC,
the President’s Committee on Government Contracts (PCGC) and in June they filed eight NLRB
59
Elizabeth to Herbert Hill, June 25, 1954, LCMD, P13-Ser.A-R20: 758; Herbert Hill to Mr. U. Simpson Tate, July
12, 1954, LCMD, P13-Ser.A-R13: 96.
60
These included the Independent Industry Workers Association at the Esso Standard Oil Company in Baton Rouge,
Louisiana; the AFL’s Galveston Metal Trades Council at the Texas City, Texas Carbide Carbon Co; and an AFL
union at the Lake Charles, Louisiana City Service Oil Refinery. Herbert Hill to Walter White, September 3, 1954,
LCMD, P13-Ser.A-R13: 58-60; Legal Department Report, September, 1954, LCMD, P1-Supp.1-R2: 690-97;
Herbert Hill to Roy Wilkins, September 14, 1954, LCMD, P13-Ser.A-R20: 718; Five workers (names missing from
typed copy) to Russell P. Davison, October 9, 1954, LCMD, P13-Ser.A-R13: 63; Executive Office Reports, October
11, 1954, LCMD P1-Supp.1-R2: 621-22; Herbert Hill to Lawrence H. Conley, October 19, 1954, LCMD, P13Ser.A-R13: 61; Herbert Hill to Lawrence Conley, November 3, 1954, P13-Ser.A-R13: 102; Executive Office
Reports, December 13, 1954, LCMD, P1-Supp.1-R2: 633-36.
61
Herbert Hill to Henry Moon, February 1, 1955, LCMD, P13-Ser.A-R20: 791; Herbert Hill to Roy Wilkins, Robert
L. Carter, and George L-P Weaver, March 2, 1955, LCMD, P13-Ser.A-R13: 83-87; Executive Office Reports, April
11, 1955, LCMD, P1-Supp.1-R2: 747.
62
Herbert Hill to Roy Wilkins, September 14, 1954, LCMD, P13-Ser.A-R20: 718; Herbert Hill to Robert Carter,
November, 17, 1954, LCMD, P13-Ser.A-R13: 64.
63
Herbert Hill to Walter White, September 3, 1954, LCMD, P13-Ser.A-R13: 58-60.
complaints on behalf of thirty-one workers at the Louisiana, Texas, and Arkansas plants,
charging both employers and unions with violating black workers’ constitutional rights.64
Their action got immediate attention, though not all the sort the NAACP had been hoping
for. By June, the PCGC had opened an investigation and Hill began receiving letters from other
branches noting similar practices in their local oil refining plants.65 But Hill also received a letter
from one of the El Dorado plaintiffs written less than a week after the NAACP filed its
complaints with the Board. Claiming to have no idea that his meetings with Hill were going to
lead to legal action, the worker’s letter quickly moved on to his reasons for this sudden bout of
ignorance. Apparently, his co-workers were accusing him of being a “trouble-maker.” “I will
have no part of this and let my family pay for it later or also myself,” Mr. Lee continued, “other
words they have plenty ways of getting rid of me.”66
During the summer of 1955, Hill met with and managed to retain a number of plaintiffs
who, like Mr. Lee, were harassed for their participation in the lawsuit and thought about pulling
out.67 Also over the summer, the NAACP received some mixed news from the federal courts in
Syres v. Oil Workers’ International Union, Local 23. The Fifth Circuit Court of Appeals rejected
the litigants’ constitutional theory and affirmed the lower court’s dismissal of Syres and the
national OWIU office’s action. However, one of the three judges dissented, finding state action
all over the Board certified Local’s practices.68 It was hard to predict what influence the decision
64
The charges addressed discrimination at the Esso Standard Oil Corp., the Carbide and Chemicals Co., Lion Oil
Co., and Cities Service Refining Corp. Legal Defense and Education Fund, June 1, 1955, LCMD, P13-Ser.A-R13:
67-68; Legal Department Report, June-August, 1955, LCMD, P1-Supp.1-R2: 858.
65
Legal Department Report, June-August, 1955, LCMD, P1-Supp.1-R2: 858; William Pollard and Woodrow Redo
to Herbert Hill, May 17, 1955, LCMD, P13-Ser.A-R13: 74; C.J. Gilliams to Herbert Hill, July 28, 1955, LCMD,
P13-Ser.A-R13: 95.
66
Willie L. Lee to Herbert Hill, June 8, 1955, LCMD, P13-Ser.A-R13: 80-81 (spelling corrected from original).
67
Executive Office Reports, October 10, 1955, LCMD P1-Supp.1-R2: 803.
68
Syres v. Oil Workers Intern. Union, Local No. 23, 223 F.2d 739 (5th Cir., 1955) (J. Rives, dissenting).
would have on the NLRB’s regional officers as they began their hearings in the oil workers’
complaints that July.
As work cooled and the waiting began on the oil workers’ case, things heated up with the
Seafarers’ International Union (SIU) and two African-American sailors aboard a Pope & Talbot
ship. In late June of 1955, Hill received a letter from William Anderson and Richard T. Fulton,
an assistant cook and chief steward and the sole African Americans on the S.S. P&T. Their letter
recounted months of verbal racial harassment and violent threats by a white member of their
crew. They stated that they had sent a letter asking the Coast Guard to intervene, but that the
Guard’s investigator had given them the impression that, as far as he was concerned, “because
our skins are coloured we are something less than human and can be treated as such.” Claiming
that efforts to push African Americans out of the trade were common, Anderson and Fulton
asserted that “we are one of the ships on which the men will fight for the right to work at their
chosen trades.” The documents accompanying their letter and their barrage of correspondence
with Hill over the next month proved this so.69
Anderson and Fulton’s ship stopped in New Jersey long enough to meet with Hill and
sign legal retainers before shipping out for California. Hill immediately set about contacting the
Coast Guard and Pope & Talbot, their ship’s owner, requesting that they take action to protect
Anderson and Fulton from violence.70 Apparently his words went unheeded. In a series of letters
sent from their progressing ports of call, Anderson and Fulton recounted the mounting tension
with the outwardly violent ship’s bosun and his passive support from the captain of their ship and
some of its crew. The secret, frightened sympathy they received from some of their white
69
William Anderson and Richard L. Fulton to Herbert Hill, June 25, 1955, LCMD, P13-Ser.A-R11: 596-97;
William Anderson and Richard L. Fulton to Commander, U.S. Coast Guard, June 25, 1955, LCMD, P13-Ser.A-R11:
594-95.
70
Herbert Hill to Lt. Spinella, June 29, 1955, LCMD, P13-Ser.A-R11: 599; Herbert Hill to Pope & Talbot, Inc.,
June 29, 1955, LCMD, P13-Ser.A-R11: 600.
shipmates only heightened their concern; these crew members alerted the two that the union was
circulating a petition to have them ordered off the ship once it reached the West Coast.71
By the time the P&T shipped out of Pensacola, Florida for the Panama Canal mid-July,
the bosun’s threats had translated into action. According to Mr. Fulton, the bosun “kicked in the
door of [his] room” and attacked Fulton and another man with a knife. “We were very lucky to
be able to ward him off with the two chairs which were in my room,” Fulton wrote. Fulton stated
that before the attack, the bosun had been “raving around on deck about ‘niggers’ not supposed
to be on the ship and that he and his union were going to see that they got off.” Fulton had a long
list of legal actions against the bosun, the union, the captain, the shipping company, and the
Coast Guard that he wanted Hill to help him pursue as soon as the ship reached port in Long
Beach, California.72 Hill forwarded the information on to the West Coast regional counsel and
watched from afar as the back-story to this incident unraveled.73
For years, the NAACP’s relationship with the Sailors’ International Union (SIU) had
been a contentious one. In 1947 it had intervened on behalf of black workers in Mobile, Alabama
when the union had ignored a black worker’s seniority and passed him over for a job
assignment.74 By the summer of 1951, the strategy of pure negotiation had shifted to one of
negotiation in the shadow of legal action. In May, the NAACP Legal Department used a range of
actions, including petitioning the union, filing complaints with the New York FEPC, and
threatening a lawsuit to secure the New York SIU’s promise to end racial discrimination in its
grants of membership, work permits, and job referrals.75
71
Richard L. Fulton to Herbert Hill, July 1, 1955, LCMD, P13-Ser.A-R11: 602; Anderson and Fulton to Herbert
Hill, July 11, 1955, LCMD, P13-Ser.A-R11: 606.
72
Richard L. Fulton to Herbert Hill, July 17, 1955, LCMD, P13-Ser.A-R11: 607-08.
73
Herbert Hill to Franklin H. Williams, July 28, 1955, LCMD, P13-Ser.A-R11: 612.
74
Labor Secretary Report, March 1, 1947, LCMD, P13-Ser.A-R9: 466.
75
Legal Department Report, May 1951, LCMD, P1-Supp.1-R2: 162-170; Executive Office Reports, July-August
1951, LCMD, P1-Supp.1-R2: 81.
Then, in the winter of 1954, just the sort of snafu the politically cautious NAACP sought
to avoid had broken out after the San Francisco branch filed a brief challenging the NLRB’s
ability to certify a racially discriminatory union in a heated turf battle between the SIU and two
unions expelled by the CIO during its anti-Communist purges: the International Longshore and
Warehouse Union (ILWU) and the National Union of Marine Cooks and Stewards (NUMCS).
The San Francisco branch had bucked the NAACP hierarchy, filing its action without first
clearing its move with the State, Regional or National offices. It had also walked into just the
sort of inter-union minefield that the organization had shunned from Perry’s 1940s litigation up
to the recent oil worker cases.76
Instantly, Franklin Williams, the West Coast Regional Counsel, sent a mollifying letter to
the vice-president of the SIU explaining that the San Francisco branch’s intervention before the
NLRB “when the question of racial discrimination was [also] raised by the ILWU” had not
meant that the NAACP was taking the ILWU’s side in the matter. Citing the organization’s noncooperation policy with the expelled CIO unions, Williams stated that the action had simply been
in accordance with the NAACP’s position “that wherever discrimination is alleged the full facts
should be adduced.”77
Even as local publicity about the NAACP’s partisanship mushroomed and the Regional
office made public and private declarations of its neutrality, African-American supporters of the
locally popular NUMCS pressured the organization to publicly back this union in its battle with
the SIU, two of whose composite unions still operated on a white-only basis. When the SIU then
Pacific Maritime Ass’n, 110 NLRB 1647 (1954). NAACP policy required all branch attorneys to notify the state
conference before bringing legal action. Annual Convention Records, June 27, 1953, LCMD, P1-Supp.1-R6: 35465. On the San Francisco branch’s violation of this policy see, Franklin H. Williams to Walter White et al., January
31, 1955, LCMD, P13-Ser.A-R11: 544-46. On the West Coast maritime unions see, Bruce Nelson, Workers on the
Waterfront: Seamen, Longshoremen, and Unionism in the 1930s (Urbana, 1988); Howard Kimeldorf, Reds or
Rackets: The Making of Radical and Conservative Unions on the Waterfront (Berkeley, 1988).
77
Franklin H. Williams to Ed Turner, November 24, 1954, LCMD, P13-Ser.A-R11: 539.
76
publicly claimed that it had received the organization’s backing, the office was deluged with
protests and Williams finally sent an emergency request to the national office asking for help in
managing the situation.78
If the politics of the Board election were explosive, the legal outcome of the branch’s
intervention was less decisive. The Board dismissed the ILWU-NUMCS and the NAACP’s
challenge to the SIU’s certifiability with its rote assessment that the SIU could be certified
because it had pledged to fairly represent all members of its bargaining unit fairly.79 The ILWU
and the branch office appealed the ruling. In January of 1955, the Ninth Circuit Federal Court of
Appeals agreed with the Board without comment. Judge Pope, writing in a separate opinion,
explained that should the SIU continue its discriminatory practices African-American stewards
would have sufficient avenues of legal redress. Among those he suggested might be available to
them was the NAACP’s expansive state action argument that the Board was constitutionally
prohibited from enforcing agreements negotiated by racially discriminatory unions. 80
As the NAACP field secretary assigned to meet Richard Fulton when he reached the
Long Beach, California port began to sort out Fulton’s case, it became clear that the at once
inseparable and reinforcing battles for racial and union turf had fused in the SIU bosun’s attack.
Fulton, it turned out, had supported NUMCS in the past winter’s nasty election. Though the
bosun was arrested in Long Beach, the SIU ordered Fulton off the S.S. P.&T. when it reached
San Francisco in August of 1955 for noncompliance with union rules. Thus began a new, more
“NAACP Not Supporting ILWU in Union Dispute,” January 14, 1955, LCMD, P13-Ser.A-R11: 543; Franklin H.
Williams to Walter White et al., January 31, 1955, LCMD, P13-Ser.A-R11: 544-46; “NAACP Charges
Misrepresentation by ILWU and AF of L in Election Dispute,” February 7, 1955, LCMD, P13-Ser.A-R11: 572;
Franklin Williams to Walter White et al., February 8, 1955, LCMD, P13-Ser.A-R11: 575; Franklin Williams to Roy
Wilkins, February 11, 1955, LCMD, P13-Ser.A-R11: 576; “NAACP Issues Policy Statement in ILWU and AF of L
Election Controversy,” February 13, 1955, LCMD, P13-Ser.A-R11: 578-79.
79
Pacific Maritime Ass’n, 110 NLRB 1647 (1954).
80
N.L.R.B. v. Pacific Ship. Ass’n, 218 F.2d 913 (9 th Cir., 1955).
78
low profile legal campaign as the field secretary tried to help win Fulton membership in the
union that now controlled his livelihood.81
Back in the oil fields, the summer’s waiting stretched into the fall. In a positive, if
ambiguous sign, in November of 1955 the Supreme Court reversed the Fifth Circuit’s ruling in
Syres, but offered hardly a word of explanation.82 Whether a majority of the Court agreed with
the dissenting Fifth Circuit judge’s constitutional theories was a matter for speculation. The next
month, the AFL and CIO announced that they were merging into a single federation of unions.
The newly joined body said it would require all member unions to operate without racial
discrimination and established a Civil Rights Department charged with enforcing this policy on
errant locals. In the midst of the NAACP’s litigation, these developments suggested that the
merger would bring union policy up to the CIO’s interracial par, rather than down to the AFL’s
historically racially exclusive practices, indicating possible relief for the southern oil workers.83
In January of 1956, Thurgood Marshall highlighted the “[n]ot quite so well known” oil workers
cases in his address to the organization’s Annual Meeting, describing them as “of vital moment.”
Noting the “exceeding” difficulty of employment discrimination suits given that “the average
employed person quite naturally has to proceed cautiously for fear of losing his job,” Marshall
promised more attention to these cases in the future.84 Then, in March of 1956, the NLRB
refused the NAACP’s appeal after the Regional Board dismissed all of the oil workers’
complaints. The PCGC, for its part, also had yet to take action.85
81
Lester P. Bailey to Herbert Hill, August 2, 1955, LCMD, P13-Ser.A-R11: 626; Herbert Hill to Henry Moon,
August 3, 1955, P13-Ser.A-R11: 619-20; Lester Bailey to Herbert Hill, August 1, 1955, LCMD, P13-Ser.A-R11:
614; Lester P. Bailey to Herbert Hill, August 4, 1955, LCMD, P13-Ser.A-R11: 624.
82
Syres v. Oil Workers Intern. Union, Local No. 23, 350 U.S. 892 (1955)
83
On the AFL-CIO merger and its adoption of an anti-discrimination platform, see Arthur J. Goldberg, AFL-CIO,
Labor United (New York, 1956).
84
Thurgood Marshall, January 3, 1956, LCMD, P1-Supp.1.1-R2: 508-14.
85
Legal Department Report, LCMD, March 1956, LCMD, P1-Supp.1.1-R1: 108.
The legal challenges may have been faltering, but when Hill set about updating the
plaintiffs on their cases that March, he reported that the lawsuits seemed to have sparked a
willingness to negotiate among some of the named companies and unions.86 In April of 1956,
Hill headed back to Texas for a round of meetings with workers and union officials involved in
the federal court cases and the NLRB actions. On April 9, a triumphant Herbert Hill
telegrammed a press release to the national office announcing “the first significant breakthrough
in the jim crow pattern within the Southern oil refining industry.” Hill had secured an agreement
that resulted in the promotion of 32 workers at the Beaumont, Texas Magnolia Petroleum
Company out of the all-black Labor Division. Over the next weeks, he reported similar, but more
modest promotions in a number of Texas refineries and a pledge from the OWIU’s president to
refuse to ratify any contracts that called for segregated lines of progression.87 To top it all off,
Hill proudly reported that he had helped organize a mass eat-in and, after being rebuffed, a
boycott of the Houston Shell Oil plant’s segregated lunchroom.88 In June, Hill met again with
OWIU officials and workers at the Lake Charles, Louisiana plant. Again, he reported that the
union voted to end segregation within the plant.89 As news of the success spread among the
86
Herbert Hill to Warner Brown, March 12, 1956, LCMD, P13-Supp.-R12: 385.
Herbert Hill to Dr. E.D. Sprott, March 21, 1956, LCMD, P13-Supp.-R12: 387; Muriel S. Outlaw to Henry Moon,
April 9, 1956, LCMD, P13-Supp.-R12: 389-90; Executive Office Reports, May 14, 1956, LCMD, P1-Supp.1.1-R1:
132-135. The OWIU had recently changed its name to the Oil, Chemical and Atomic Workers International Union. I
continue to use OWIU for simplicity’s sake.
88
Executive Office Reports, May 14, 1956, LCMD, P1-Supp.1.1-R1: 132-135. The NAACP supported direct action
as a means to achieve equal employment during the 1950s. Gloster Current to E.I. Robinson, December 28, 1953,
LCMD, P13-Ser.A-R11: 523; “NAACP Membership Unanimous on Yellow Cab Boycott,” June 6, 1955, LCMD,
P13-Ser.A-R11: 589. Like the Shell Oil workers, other African-American workers combined legal action with direct
action strategies. “AFL Taxicab Drivers Quit Over Bias,” Pittsburg Courier, (March 8, 1952), n.p.; Cornelius A.
Simmons to Herbert Hill, May 18, 1959, LCMD, P13-Supp.-R1: 538-39.
89
Herbert Hill to O.A. Knight, President, OCAIU, May 16, 1956, LCMD, P13-Supp.-R12: 398-99; Herbert Hill to
Miss Florence B. Irving, June 12, 1956, LCMD, P13-Supp.-R12: 407.
87
branches, Hill headed to California where workers and union officials were working on similar
problems at their plant.90
The national President of OWIU’s popularized message that his locals should not let the
growing tide of organized white resistance in the South “tear your union apart” seemed to be
winning contracts integrating some aspects of the workplace.91 However, the OWIU Locals’
ambivalence about these changes soon became clear. In July, Hill wrote an urgent letter to an
OWIU District official. Quincy Bess, one of the plaintiffs in the NAACP oil cases and an active
branch member, had been suspended from his job at the Houston Shell Oil plant for using the
company’s white-only facilities. Bess had filed a grievance with his union, but his OWIU Local
did not seem in a rush to pursue his claim. Hill wanted the District official to intervene.92
Whereas Hill had recently sent the newly merged AFL-CIO’s Civil Rights Department
information about the oil cases as a model of NAACP-union collaborative success, he now began
a steady stream of complaints calling for the Civil Rights Department’s action in the stalled oil
industry cases. With this evolvement, the oil workers story began its steady decline from a model
of success to the NAACP’s exemplar of the recently merged AFL-CIO’s utter failure to address
the concerns of black workers.93
Hammer and Rail, 1957-1960
After 1956, Hill and the NAACP continued their focus on integrating industrial unions
membership and lines of promotion in order to prevent African-American workers from
remaining locked out of a union voice and locked into the rapidly dwindling pool of unskilled
90
Lee A. Merriwether, to Herman [sic] Hill, March 2, 1956, LCMD, P13-Supp.-R12: 382; Herbert Hill to Lee A.
Merriwether, May 2, 1956, LCMD, P13-Supp.-R12: 393-94.
91
Marvin Zeldin, OCAWIU, to Roy Wilkins, May 21, 1956, LCMD, P13-Supp.-R12: 404-05.
92
Herbert Hill to J. Elroy Brown, July 23, 1956, LCMD, P13-Supp.-R12: 421.
93
Executive Office Reports, April 9, 1956, LCMD, P1-Supp.1.1-R1: 94-96; Herbert Hill to Boris Shishkin, May 7,
1956, LCMD, P13-Supp.-R12: 395; Herbert Hill to Boris Shishkin, December 4, 1958, LCMD, P13-Supp.-R1: 393403. For the mixed success of the oilworkers litigation campaign see, Ray Marshall, “Some Factors Influencing the
Upgrading of Negroes in the Southern Petroleum Refining Industry,” Social Forces (Dec., 1963), 186.
industrial jobs. However, towards the close of the Cold War 1950s, the persistent racial
exclusion of the older railway and construction trade unions dominated the organization’s labor
advocacy. This resulted from the emphatic supremacist sting of these unions’ white-only rules at
a time when the rest of the labor movement had moved beyond such explicit forms of racial
exclusion. But the NAACP also picked its fight with these unions because in the older craft
unions, membership was often a necessary precondition for employment. As the construction
trades found a goldmine in building the mushrooming military-industrial complex, their racially
exclusive and segregationist membership practices were leaving African-Americans out of the
government financed economic boon.
The NAACP battle with the construction unions dated back to the 1940s. In 1948, Perry’s
constitutional challenge to white workers at the National Tube plant in Lorain, Ohio sought to
prevent them form forming an all-white local of the Bricklayers, Plasterers, and Masons Union,
AFL (BPMU). In 1949, the NAACP began a series of investigations into building trade unions
across the country with an eye toward legal action.94 By the end of 1951, the Legal Department
reported that it had conducted research and was ready to commence legal action against
construction unions and the Dupont Company in Aiken, South Carolina for excluding African
Americans from jobs building a new company plant. On the eve of filing its suit, however,
President Truman announced his long sought Executive Order establishing a Presidential
committee to enforce the non-discrimination clauses in government contracts. Because the
DuPont plant was being built under such a contract, the legal team had to halt its efforts in order
to determine whether it had to exhaust this new remedy before it could bring its claims to the
94
Investigations were undertaken in New York, Arkansas, Colorado, Tennessee, South Carolina, and Maryland.
Herbert Hill to Roy Wilkins, April 1, 1949, LCMD, P13-Ser.A-R20: 346-48; Report of the Labor Secretary,
October, 1949, LCMD, P1-R7: 788-89.
courts. After filing a complaint with the President’s committee, the NAACP’s action stalled. As
1952 drew to a close, the committee had yet to act.95
Nonetheless, the NAACP kept these unions on its radar. After Truman was voted out of
office, the 1953 convention resolutions urged the new President Eisenhower to take action
against the building trades and government contractors shutting black workers out of the postwar
building boom.96 When Hill designed his ten-year plan in the fall of 1953, he deemed the
building trades (along with the railway and printing trades) one of the “three worst areas of
employment for Negroes.” Their racially subordinating practices were so entrenched that Hill
was certain “it will be necessary to use the law as an instrument of social change.”97
In 1954, Hill began a years long effort to crack open the building trades in Florida, home
to a significant portion of the new defense contract construction projects. The process involved
investigation, publicity, strategizing with branch and state NAACP offices, the formation of a
state Labor Committee under the direction of a member of the African-American led
Brotherhood of Sleeping Car Porters (“Sleeping Car Porters”), meetings with black workers and
negotiations with national and local building trades union officials.98 By September of 1954, Hill
reported that he’d successfully opened up the Dade County BPMU and was working on helping
qualified African-Americans to apply for membership.99 Despite these modest gains, many
95
Legal Department Report, November 1951, LCMD P1-Supp.1-R2: 184-96. Not all the investigations led to legal
action against unions. In Knoxville Tennessee, the local NAACP branch joined with a business agent of the local
carpenters’ union to prepare legal action against an employer discriminating in government contract work. Report of
the Labor Secretary, November, 1949, LCMD, P1-R7: 802. While the NAACP’s legal action stalled, it turned the
fruits of its investigation to legislative ends. In his 1952 Congressional testimony in support of Fair Employment
Practices legislation, NAACP Executive Secretary Walter White highlighted the discrimination occurring at the
Aiken Dupont site. On stalled legal campaign, see Herbert Hill to Mr. Henry L. Moon, October 22, 1952, LCMD,
P13-SA-R19: 730. For White’s testimony, see Executive Office Reports, May 12, 1952, LCMD P1-Supp.1-R2: 235;
Senate Committee on Labor and Public Welfare, 82 S1018-2, (April, 1952), 141.
96
Annual Convention Records, June 23-28, 1953, LCMD, P13-Ser.A-R20: 607-611.
97
Herbert Hill to Walter White, October 6, 1953, LCMD, P13-Ser.A-R20: 627-30.
98
Herbert Hill to Henry Moon, May 12, 1954, LCMD, P13-Ser.A-R19: 989.
99
Herbert Hill to Walter White, September 7, 1954, LCMD, P13-Ser.A-R20: 719-20; Executive Office Reports,
September 13, 1954, LCMD, P1-Supp.1-R2: 609-11.
challenges persisted.100 By the summer of 1956, Hill had yet to hear back on a number of
complaints against building trade locals that he had filed with the AFL-CIO’s Civil Rights
Department.101 When A. Philip Randolph, the President of the Sleeping Car Porters, spoke at the
NAACP’s 1956 annual convention, he singled out the building trades and railway unions. In a
speech recounting how “the white workers of the South had been drugged with the opium of
white supremacy,” Randolph noted that the AFL construction and railway unions had yet to join
the revolution in the labor movement against the “political demagogues” who used racialism to
divide workers.102
In the fall of 1956, Hill informed the NAACP Board that, in response to member and
branch requests, he was creating a Labor Manual that would explain all the legal avenues
available to workers who wanted to challenge union and employer discrimination. Hill hoped to
spur a grass-roots legal campaign.103 But just such a campaign, was already under way. James
Dorsey, a Milwaukee NAACP attorney had recently brought a constitutional claim on behalf of
two young black men who had unsuccessfully attempted to join the Milwaukee BPMU, Local 8.
Dorsey argued, among other things, that the Wisconsin FEPC’s oversight of the Bricklayers’
union created sufficient state action to make the union’s racially exclusive practices
unconstitutional. In November of 1956, the Wisconsin Circuit Court rejected this claim.104
Dorsey appealed the court’s ruling. Hill asked the national Legal Department to file an
amicus brief, filed a complaint with the AFL-CIO’s Civil Rights Department, and initiated a
round of meetings with the state FEPC and union officials. However, in April of 1957, the
100
Herbert Hill to Roy Wilkins, July 5, 1955, LCMD, P13-Ser.A-R20: 871.
Executive Office Reports, April 9, 1956, LCMD, P1-Supp.1.1-R1: 94-96.
102
A. Philip Randolph, June 26, 1956 LCMD, P1-Supp.1.1-R4: 694-700.
103
Executive Office Reports, November 13, 1956, LCMD, P1-Supp.1.1-R1: 223-24.
104
Ross v. Ebert, 9 FEP Cases 1037 (1956). On James Dorsey and his work on behalf of Milwaukee teachers, see
Jack Dougherty, “’That’s when we were marching for jobs’: Black Teachers and the Early Civil Rights Movement
in Milwaukee,” History of Education Quarterly 38 (1998), 121.
101
Wisconsin Supreme Court affirmed the lower court’s rejection of Dorsey’s constitutional
theories. Nonetheless, once again, a dissenting voice championed the NAACP attorneys’
expansive state action argument and its constitutional claim to union rights. “We are engaged in
a struggle to make equality and freedom realities for all Americans,” Justice Fairchild wrote in
dissent. According to the judge, employment opportunity was essential to “to erase from
America anything which could be termed ‘Second class’ citizenship.” As a result, “If it be
proved that defendant union is excluding plaintiffs because of their race, then the union is
denying them the equal protection of the laws of the state concerning the right of organization
and collective bargaining in employment relations.”105 While Fairchild’s dissent did not gain the
plaintiffs’ union membership, the Supreme Court’s decision spurred the Wisconsin legislature to
strengthen the state’s fair employment law. Over the summer of 1957, Hill continued to negotiate
membership for the plaintiffs while the NAACP’s convention resolutions fingered the building
trades for public censure.106
In 1958, the NAACP kept the heat up on the building trade unions in the North and the
South. Its annual convention was held in Cleveland, Ohio, where Hill had just completed a threeyear long litigation and negotiation effort to open another construction union, the International
Brotherhood of Electrical Workers (IBEW), Local 38 to black members.107 Employment
discrimination featured prominently at the convention, with both the Association’s Executive
Secretary and Chair’s speeches highlighting its importance and prioritizing the NAACP’s work
to end the color bar in organized labor. Again, the conference resolutions singled out the railway
105
Executive Office Reports, February 11, 1957, LCMD, P1-Supp.1.1-R1: 285-87; Ross v. Ebert, 82 N.W.2d 315,
321 (S.C. Wis., 1957).
106
Executive Office Reports, September 9, 1957, LCMD, P1-Supp.1.1-R1: 434-37; Annual Convention Records,
June 25-30, 1957, LCMD, P1-Supp.1.1-R6: 476-81.
107
On Hill’s work opening IBEW Local 38 see, Executive Office Reports, February 14, 1956, LCMD, P1-Supp.1.1R1: 39-40; Executive Office Reports, April 9, 1956, LCMD, P1-Supp.1.1-R1: 94-96; Executive Office Reports,
April 8, 1957, LCMD, P1-Supp.1.1-R1: 347-50; Herbert Hill to Clarence Mitchell, May 13, 1958, LCMD, P13Supp.-R1: 268-70.
and building trades, praising the AFL-CIO unions’ national policy of non-discrimination, but
criticizing this policy’s slow “spread down to the local level…especially in the skilled building
trades” and noting that, “scarcely any national unions now have constitutional barriers against
Negro membership, except for the operating unions in the railroad industry.”108
Soon thereafter, the NAACP began investigations into building trade discrimination in a
number of cities.109 It also began to challenge the AFL-CIO much more publicly and
confrontationally. After a 1958 fall spent conducting investigations in cities such as East St.
Louis, Illinois, the NAACP announced to the AFL-CIO leadership and the media that it would be
releasing a critical labor report at its annual meeting, January 5, 1959.110 The report, written by
Hill, was exhaustive and scathing. After detailing the vulnerability of African-American workers
in an era of mechanization and rising unemployment rates, Hill sharply denounced the
“significant disparity between the declared public policy of the National AFL-CIO and the day to
day reality as experienced by Negro wage earners in the North as well as in the South.” In
particular, he singled out the discriminatory practices of the Railway Brotherhoods and the
building trade unions. Given the many as yet unaddressed complaints the NAACP had filed with
the AFL-CIO Civil Rights Department over the past three years, Hill proclaimed, “We are forced
to note [its] inability…to effectively enforce AFL-CIO policy resolutions against discrimination
and segregation.”111
Hill’s report was not well-received by the AFL-CIO leadership. While the Negro Labor
Committee, a group of over 1,000 black members of the AFL-CIO passed a resolution in support
108
Channing H. Tobias, July 8, 1958, LCMD, P1-Supp.1.1-R8: 647-65; Roy Wilkins, July 13, 1958, LCMD, P1Supp.1.1-R8: 684; Annual Conventions Records, July 8-13, 1958, LCMD, P1-Supp.1.1-R8: 492-96.
109
Executive Office Reports, September 8, 1958, LCMD, P1-Supp.1.1-R1: 668-72.
110
Herbert Hill to Boris Shishkin, December 4, 1958, LCMD, P13-Supp.-R1: 393-403; Roy Wilkins to George
Meany, December 19, 1958, LCMD, P13-Supp.-R1: 282-84.
111
Herbert Hill, January 5, 1959, LCMD, P1-Supp.1.1-R2: 748-50; A.H. Raskin, “NAACP Accuses Labor of Bias
Lag,” New York Times (January 5, 1959), 29.
of the NAACP, George Meany, the president of the merged union, and Boris Shishkin, the head
of its Civil Rights Department, made their displeasure known.112 By March, Roy Wilkins, the
NAACP’s Executive Secretary had publicly patched things up with Meany, but the tenor of the
NAACP-AFL-CIO relationship had changed.113 No sooner had the ink dried on their joint public
statement, than the NAACP began a coordinated litigation campaign against the building trade
unions and Railway Brotherhoods in Illinois, Missouri, Oklahoma, Washington D.C., New York,
and New Jersey. Complaints were filed with the AFL-CIO Civil Rights Department, NAACP
staff set about exhausting workers’ administrative remedies, and the national office recruited
attorneys from the State Conferences of Branches to pursue legal action on behalf of branch
members.114
NAACP attorneys had continued to tangle with the all-white Railway Brotherhoods since
their constitutionally ambiguous wartime wins in front of the Supreme Court. In a 1949 speech to
the NAACP Annual Convention delegates, Charles Hamilton Houston, former NAACP General
Counsel, current member of its National Legal Committee Washington, litigator of the wartime
Railway Brotherhood cases, and mentor to the Legal Department’s attorneys, made clear that the
fight against the railway unions had just begun.115 Describing the railroad’s employment pattern
as “an Ivory Soap ad” and the Brotherhoods as enforcing a “Nordic closed shop,” Houston
“Negro Labor Committee Supports NAACP Action Against Union Bias,” January 29, 1959, LCMD, P13-Supp.R1: 439; Herbert Hill to Roy Wilkins, February 2, 1959, LCMD, P13-Supp.-R1: 437-38; Roy Wilkins to A. Philip
Randolph, February 6, 1959, LCMD, P13-Supp.-R1: 494-95.
113
“Joint Statement of NAACP Executive Secretary and AFL-CIO President,” March 20, 1959, LCMD, P13-Supp.R1: 442; Executive Office Reports, April 13, 1959, LCMD, P1-Supp.1.1-R2: 81.
114
Executive Office Reports, April 13, 1959, LCMD, P1-Supp.1.1-R2: 88-90; Executive Office Reports, LCMD,
P1-Supp.1.1-R2: 281-2; Executive Office Reports, March 14, 1960, LCMD, P1-Supp.1.1-R2: 315-18; Executive
Office Reports, June 13, 1960, LCMD, P1-Supp.1.1-R2: 389-91.
115
On Hamilton, his influence in the NAACP’s Legal Department, and his often overlooked labor litigation, see,
Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (Philadelphia, 1983);
Tushnet, Making Civil Rights Law, 17-18; J. Clay Smith, Jr. and E. Desmond Hogan, Remembered Hero, Forgotten
Contribution: Charles Hamilton Houston, Legal Realism, and Labor Law, Harvard BlackLetter Law Journal 14
(1998), 1. On the racial practices of the Railway Brotherhoods, see Eric Arnesen, Brotherhoods of Color: Black
Railroad Workers and the Struggle for Equality (Cambridge, 2001).
112
detailed his firm’s ongoing litigation against these labor organizations. These cases, he told the
audience, would go to the heart of black workers’ union rights, asserting that the Constitution
requires the Brotherhoods to allow African-American workers to participate in union governance
procedures. “If we win these cases,” Houston concluded, “Jim-Crow union membership will be
nothing but an empty shell.”116
Houston died later that year. But his partner Joseph Waddy continued the fight, winning a
series of cases in the federal and Supreme Courts between 1949 and 1952 that expanded the
scope of unions’ duty of fair representation, even as they preserved government certified unions’
ability to set racially exclusive membership terms and failed to clarify this doctrine’s relationship
to the Constitution.117 During this time, Waddy worked closely with the NAACP. In 1951,
Waddy and Mitchell pressed for clients at an “Equal Employment Opportunities” workshop.118
In 1952, they teamed up in an action on behalf of a Washington D.C. railroad worker who
refused to join a segregated local of the Brotherhood of Railway Carmen after it won a unionshop agreement with his employer. Building on the Baltimore NAACP branch’s 1950 success in
a similar case, Waddy and Mitchell got the Brotherhood to agree to admit black workers.119
Since then, the Houston, Texas attorney who represented the Port Arthur Gulf Oil
workers in Syres had taken a case on behalf of African-American members of the Brotherhood of
Railway and Steamship Clerks all the way to the Supreme Court. In its November, 1957 opinion
Charles Hamilton Houston, July 14, 1949, LCMD, P1-R12: 694-707. See also, Charles Hamilton Houston, “Foul
Employment Practice on the Rails,” Crisis 56 (October, 1949): 269. Houston did not cite the Constitution in his
speech, but the legal records of these cases demonstrate a constitutional theory. See, e.g., Complaint of Plaintiff at 3,
Howard v. Thomas, 72 F. Supp. 695 (D.C. Mo., 1947) (No. 4452). Reprinted in Appeal, Howard v. St. Louis-San
Francisco Ry. Co., 191 F.2d 442 (8th Cir., 1951) (Nos. 13899, 13900), Yale Law School collection of United States
Supreme Court case materials (YLS).
117
Rolax v. Atlantic Coast Liner, Co., 91 F. Supp. 585 (E.D., Va., 1950); Rolax v. Atlantic Coast Liner, Co., 186
F.2d. 473 (4th Cir., 1951); Howard v. St. Louis Ry. Co., 191 F.2d 442 (8th Cir., 1951); Brotherhood of R.R.
Trainmen v. Howard, 343 U.S. 768 (1952); Dillard v. Chesapeake & O. Ry. Co., 199 F.2d 948 (4 th Cir., 1952)
118
“Equal Employment Opportunities,” June 29, 1951, LCMD, 1-Supp.1-3: 939-40.
119
Executive Office Reports, October 13, 1952, LCMD 1-Supp.1-2: 275; Executive Office Reports, February 9,
1953, LCMD 1-Supp.1-2: 377.
116
in favor of the black railmen, the Court once again granted the plaintiffs’ relief without
proclaiming their constitutional rights.120 Also in 1957, Joseph Rauh, the attorney for A. Philip
Randolph and the Brotherhood of Sleeping Car Porters as well as for NAACP Board member
and United Automobile Workers (UAW) president Walter Reuther, brought a case in the Ohio
federal courts on behalf of a group of African American trainmen.121 Rauh charged the Railway
Brotherhood of Trainmen and Enginemen, one of the few Brotherhoods whose constitutions still
maintained the same “Nordic closed shop” Charles Hamilton Houston had decried nearly a
decade earlier, with violating the constitutional rights of the black workers by denying them
“voice and vote” in union and workplace governance.122 In 1957 and 1958, two federal courts
and the Supreme Court rejected Rauh’s claims. Just as the NAACP got ready to launch its multicity litigation against the Railway Brotherhoods, the Supreme Court once again refused to review
Rauh’s thus far unsuccessful claim that black workers’ had a constitutional right to a union
voice.123
As the NAACP’s building and railway union litigation work proceeded, the fissures
between the NAACP and the AFL-CIO grew. Many aspects of the NAACP’s July 1959
convention bespoke friendly collaboration. The AFL-CIO Civil Rights Department issued a
“Salute to the NAACP” that stated, “Walking together down the Freedom road, AFL-CIO and
NAACP seek full citizenship for all” while a play dramatizing the NAACP’s fifty years of work
Conley v. Gibson, 138 F.Supp. 60, (S.D. Tex., 1955), aff’d 229 F.2d 436 (5th Cir.) (per curiam), revs’d, 355 U.S.
41 (1957).
121
For Rauh’s representation of Reuther and Randolph, see Michael E. Parrish, “A Lawyer in Crisis Times: Joseph
L. Rauh, Jr., the Loyalty-Security Program, and the Defense of Civil Liberties in the Early Cold War,” North
Carolina Law Review (June, 2004), 1799.
122
Oliphant v. Brotherhood of Locomotive Firemen and Enginemen, Petition for a Writ of Certiorari, at 9-14, 359
U.S. 935 (1958), YLS.
123
Oliphant v. Brotherhood of Locomotive Firemen and Enginemen, 156 F. Supp. 89 (N.D. Ohio, 1957), cert den’d
355 U.S. 893 (1957), aff’d 262 F.2d 359 (6th Cir., 1958), cert den’d 359 U.S. 935 (1959).
120
put a positive spin on the Association’s labor alliance.124 But the resolutions passed, the
statements released to the press and A. Philip Randolph’s speech belied the apparent harmony.
The resolutions “deplored” the AFL-CIO’s failure to end discrimination, dwelling in particular
on the Brotherhood of Trainmen and Enginemen’s recent defense of its racially exclusive policy
in Rauh’s case while A. Philip Randolph decried segregation and racial exclusivity in union
membership, whether urged by black or white workers.125 Two months later, when Randolph
pitched a similar line at the AFL-CIO’s annual convention, his call for the expulsion of the
remaining unions that excluded or segregated their membership earned him a well-publicized
verbal rebuke from the AFL-CIO’s president, George Meany.126
Over the spring of 1960, the NAACP stepped up pressure on unions’ exclusion of black
workers from prominent Washington, D.C. building projects, including renovations of the White
House and of the House of Representative’s new office building. In addition to the regular round
of meetings with AFL-CIO officials and the PCGC, the NAACP sought and received publicity
for its campaign from national news outlets.127 In the meantime, Meany attempted to recuperate
his public civil rights image, among other things making a public promise to help recruit
124
Annual Convention Records, July, 1959, LCMD, P1-Supp.1.1-R11: 273; William D. Branch, July, 1959, LCMD,
P1-Supp.1.1-R10: 245.
125
Annual Convention Records, July 13-19, 1959, LCMD, P1-Supp.1.1-R10: 471-97; A. Philip Randolph, July 15,
1959, LCMD, P1-Supp.1.1-R11: 158-165; “Stepped-Up Registration Drive,” July 23, 1959, LCMD, P1-Supp.1.1R10: 216-17. African-American unionists were divided on the issue of separate or interracial unionization. For
historical treatments of black workers’ varying strategies vis-à-vis white workers and white unions, see Eric
Arnesen, Brotherhoods of Color: Black Railroad Workers and the Struggle for Equality (2001); Nelson, Divided We
Stand. This issue often put union locals in conflict with national labor and civil rights leadership. For example, the
national NAACP struggled with an all-black local at the Lockheed plant in Marietta, Georgia that rejected the
national office’s efforts to integrate it with the all-white local. Executive Office Reports, September 9, 1957, LCMD,
P1-Supp.1.1-R1: 434-37.
126
A.H. Raskin, “AFL-CIO Faces Jim-Crow Fight,” New York Times (September 20, 1959), 1; A.H. Raskin,
“Meany Attacks Negro Unionist,” New York Times (September 24, 1959), 1.
127
Executive Office Reports, February 8, 1960, LCMD, P1-Supp.1.1-R2: 281-2. Joseph A. Loftus, “Labor Color
Line Will Be Fought in All Government Construction,” New York Times (March 17, 1960), 37;
qualified African Americans for the D.C. federal construction projects that were drawing
increasing NAACP attention and publicity.128
The two organizations’ public relations campaigns came to a head in May of 1960 when
the NAACP publicly chastised Meany for not living up to his word on the D.C. hires and warned
him that “further delay…will be interpreted by the Negro community as additional evidence of
the inability of organized labor to eliminate even the most obvious instances of racism within its
own ranks.” Meany shot back that the NAACP’s claims were unfounded; the recent exclusion of
five qualified African-American electricians from a D.C. job had been the employers’, not the
IBEW union’s doing.129
At the NAACP’s June, 1960 convention, Roy Wilkins, the Executive Secretary, declared
that “reports going around about friction between the NAACP and labor” were pure nonsense.
“The NAACP has only one enemy, discrimination and segregation.” Conference participants
from across the country were encouraged to use boycotts and pickets to press employers to open
employment and the usual parade of union leaders urged the twin goals of labor and civil rights.
But the conference resolutions for the first time in many years declared the organization’s more
aggressive legal stance. Affirming its support of the closed-shop agreements favored by the labor
movement and reviled by its foes, the NAACP made clear that it was nonetheless prepared to ask
the NLRB to enforce the NLRA’s open-shop provisions where closed unions used closed shops
128
Executive Office Reports, October 13, 1959, LCMD, P1-Supp.1.1-R2: 196; Executive Office Reports, October
13, 1959, LCMD, P1-Supp.1.1-R2: 206; Executive Office Reports, February 8, 1960, LCMD, P1-Supp.1.1-R2: 275;
Executive Office Reports, March 14, 1960, LCMD, P1-Supp.1.1-R2: 694; Jewish Labor Council, March 26, 1960,
LCMD, P13-Supp.-R1: 617.
129
Roy Wilkins to George Meany, May 25, 1960, LCMD, P13-Supp.-R1: 673-75; George Meany to Roy Wilkins,
May 27, 1960, LCMD, P13-Supp.-R1: 664-68; “NAACP Prods Meany On No Bias Vow,” New York Times (May
25, 1960), C10. The International Brotherhood of Electrical Workers (IBEW) was an affiliate of the AFL prior to its
merger with the CIO.
to exclude African-American workers.130 The resolution, which significantly diverged from the
labor movement’s line, was a sign of things to come. Over the next two years, the NAACP
geared up for its most aggressive, public, and coordinated campaign against union and workplace
discrimination yet.
The Machine Age, 1961-1964
Unlike the Railway Brotherhoods and the building trades unions, the NAACP had a long
and congenial relationship with the United Steelworkers of America (USWA). Philip Murray, the
founder and president of the CIO’s USWA was on the NAACP Executive Board from 1946 until
his death in 1952 and Hill had organized for the USWA before joining the NAACP.131 In the
winter of 1949, when Clarence Mitchell brought a complaint on behalf of Indiana USWA
members who claimed that their union was not protecting their seniority rights, he brought it to
the National CIO’s Committee to Abolish Discrimination, not to a government agency.132
Throughout the 1950s, the NAACP pressed its national campaign for civil rights unionism with
and through the USWA. Arthur J. Goldberg, general counsel for the national CIO and the
USWA, filed briefs in support of the NAACP’s 1950 Supreme Court challenges to segregation in
public Universities and interstate transportation. In 1951, the Association called on Murray and
his union to intervene in Birmingham, Alabama when white residents in this steel stronghold
“Randolph Hails NAACP Role in Fighting Labor Union Bias,” June 26, 1960, LCMD, P1-Supp.1.1-R12: 419;
Annual Convention Records, June 23, 1960, LCMD, P1-Supp.1.1-R12: 280; Roy Wilkins to Members of Board,
June, 1960, LCMD, P1-Supp.1.1-R12: 445-48. In a union (or closed) shop, the employer agrees to only hire
members of the union. A closed union is one that excludes African Americans from membership. A closed union
that negotiates a closed shop effectively shuts black workers out of that employer’s workplace.
131
On Murray’s support for civil rights and work on the NAACP board, see Nelson, Divided We Stand, 186-206.
See also, Paul F. Clark et. al., Forging a Union of Steel: Philip Murray, SWOC and the United Steelworkers (Ithaca,
1987).
132
Report of the Labor Secretary, December, 1949, LCMD, P1-R7: 815-17. On civil rights unionism among
Indiana’s black steelworkers see, Ruth Needleman, Black Freedom Fighters in Steel: The Struggle for Democratic
Unionism (Cornell, 2003).
130
violently terrorized local African Americans.133 Starting in 1954 and continuing throughout the
1950s, Herbert Hill, at the behest of the national USWA leadership, had worked with the
Birmingham and Bessemer, Alabama USWA locals to end racially discriminatory practices,
establish internal civil rights committees, and strengthen the union’s relationship with local
NAACP chapters.134
But by 1961, even this close relationship was straining under the weight of accumulated
frustration at the slow pace of change and the pressure of the NAACP’s increasingly militant
stance. At the start of the year, the NAACP released a report by Herbert Hill titled “Racism
within the Organized Labor Movement: A Report of Five Years of the AFL-CIO.” Opening with
the observation that “the elimination of racism within trade unions was one of the major goals for
organized labor announced at the merger convention of the [AFL] and the [CIO] in December,
1955,” Hill proceeded to exhaustively detail the federation’s perceived failings in making reality
of its rhetoric. The report covered white supremacist domination of Southern union locals, the
persistence of segregated locals, racially exclusive membership, separate lines of promotion, and
the exclusion of African Americans from trade and industry apprenticeship programs. Declaring
that these discriminatory union practices were “not limited to any one area of the country or to
some few industries or union jurisdictions,” Hill called out the industries and unions that had
dominated the organization’s advocacy work for the past fifteen years: the SIU, the building
trades, the railway brotherhoods, the oil workers’ unions, and even its old friend, the USWA.
Having termed the federation’s Civil Rights Department an ineffective, unempowered figure-
133
Executive Office Reports, July-August 1951, LCMD P1-Supp.1-R2: 78.
Herbert Hill to Walter White, May 8-17, 1953, LCMD, P13-Ser.A-R11: 486-492; Herbert Hill to Walter White,
September 16, 1953, LCMD, P13-Ser.A-R11: 514. Executive Office Reports, May 10, 1954, LCMD, P1-Supp.1-R2:
588-90; Judith Stein, Running Steel, Running America: Race, Economic Policy, and the Decline of Liberalism
(Chapel Hill, 1998), Ch.1-2; Bruce Nelson, “The CIO Meant One Thing for the Whites and Another Thing For Us”:
Steelworkers and Civil Rights, 1936-1974,” in Southern Labor in Transition, ed. Robert H. Zeiger (Knoxville,
1997).
134
head that existed solely “to create a ‘liberal’ public relations image” for the AFL-CIO, Hill’s
report made it clear that the NAACP no longer saw working within union governance structures
as an efficacious strategy.135
Over the next year-and-a-half, the NAACP geared up for litigation against all the
industries named in its report. Branch workers and attorneys gathered affidavits and prepared
lawsuits against the Railway Brotherhoods, several building trades unions, USWA, SIU, and the
Metal Trade Unions that organized in the oil industry.136 By the summer of 1962, Herbert Hill
reported that over 500 complaints had been filed with President Kennedy’s version of the PCGC,
the year-old Committee on Equal Employment Opportunity. The NAACP was now ready to take
its complaints to the NLRB and the courts.
In October of 1962, the NAACP issued a press release announcing its “Legal Attack on
Trade Union Bias.” Describing its “frontal attack on barriers to Negro employment and job
promotion,” the release reported that the NAACP had recently filed NLRB actions against the
Atlantic Steel Company and its Atlanta, Georgia plant’s USWA Local, 2401 and against the
West Coast SIU, the same union that threw Richard Fulton off of his ship in 1955. The NAACP
had also filed a federal court action against the Brotherhood of Railway Trainmen, an action
brought on behalf of the same plaintiff and against the same union as in a successful Supreme
Court case brought by Joseph Waddy in 1952. Lastly, the NAACP announced that the segregated
Local 1 of the Independent Metal Workers Union (IMWU) at the Hughes Tool Company’s
Houston, Texas oil drilling plant had asked the NAACP to join its pending NLRB action against
Herbert Hill, “Racism Within Organized Labor: A Report of Five Years of the AFL-CIO, 1955-1960,” January 3,
1961, LCMD, P13-Supp.-R7: 618-31; reprinted in Journal of Negro Education 30(Spring, 1961), 109-118.
136
Executive Office Reports, April 10, 1961, LCMD, P1-Supp.1.2-R1: 468-470; Board of Directors Meeting,
September 11, 1961, LCMD, P1-Supp.1.2-R1: 512; Executive Office Reports, November 13, 1961, LCMD, P1Supp.1.2-R1: 566-67; Executive Office Reports, December 11, 1961, LCMD, P1-Supp.1.2-R1: 579; Herbert Hill,
July 3, 1962, LCMD, P1-Supp.1.2-R4: 356-58.
135
its employer and the all-white IMWU, Local 1. In each of these cases, the NAACP made a
constitutional claim.137 “The right to equality in job opportunity is equally as basic, if not more
so, as the right to an unsegregated education,” NAACP attorney Robert L. Carter was quoted as
saying.138 While many of the claims echoed those made in the NAACP’s past labor advocacy,
they also focused on what the NAACP was increasingly coming to see as black Americans’, and
its own, future: access to union voice and union training in an increasingly mechanized
workplace.
The impact of automation on present and future African-American workers had long been
a subject of concern for Herbert Hill and influenced his work throughout the 1950s.139 At first,
Hill focused on ending segregation in unions and their bargained for lines of promotion.140 But
integrated lines of promotion did little good when African Americans did not have access to the
skills and training needed to qualify for newly opened positions. Thus, as the decade progressed,
Hill’s attention increasingly focused on the issue of apprenticeship programs. Throughout the
mid- to late-1950s, Hill worked with local branches and unions to open apprenticeship programs
in such locations as the Michigan auto industry, the Florida and Ohio building trades, and the
Georgia and Kentucky defense industry. 141 By 1956, the issue had earned attention at the
Association’s annual convention and was urged as a topic of advocacy and activism in Hill’s
137
Atlantic Steel Co. and United Steelworkers of America, Local 2401, NLRB Case No. R. 2964, October 29, 1962,
LCMD, P13-Supp.-R11: 83-88; James C. Dixon v. Seafarers International Union, draft NLRB petition, October,
1962, LCMD, P13-Supp.-R11: 122-26; Howard v. St. Louis-San Francisco Railway Co., draft complaint, undated,
LCMD, P13-Supp.-R11: 12-16; Hughes Tool Company, NLRB case no. 23-RC-1758, October 24, 1962, LCMD,
P13-Supp.-R11: 148-53. For a history of the NAACP complaint against USWA and its impact on the NAACP’s
increasingly strained relationship with organized labor see, Bruce Nelson, “The CIO Meant One Thing for the
Whites.”
138
“NAACP in Legal Attack,” October 16, 1962, LCMD, P13-Supp.-R11: 93-95.
139
Herbert Hill to Walter White, October 6, 1953, LCMD, P13-Ser.A-R20: 627-30.
140
This was the goal in the 1950s oil worker cases and Hill’s 1950s work with the USWA in Alabama.
141
Executive Office Reports, May 10, 1954, LCMD, P1-Supp.1-R2: 588-90; Executive Office Reports, October 10,
1955, LCMD P1-Supp.1-R2: 802-04; Executive Office Reports, February 14, 1956, LCMD, P1-Supp.1.1-R11: 3940; Executive Office Reports, December 10, 1956, LCMD, P1-Supp.1.1-R1: 254-55; Executive Office Reports,
February 11, 1957, LCMD, P1-Supp.1.1-R1: 285-87; Executive Office Reports, March 11, 1957, LCMD, P1Supp.1.1-R1: 318-21; “Apprentice Training Color Bar Broken,” January 6, 1958, LCMD, P1-Supp.1.1-R2: 615-16.
branch Labor Manual, published in the fall of 1957.142 Over the next years, as the NAACP’s
stance towards the labor movement became increasingly confrontational, Hill kept up this
attention, making apprenticeship programs a focus of his controversial 1959 report to the
NAACP’s Annual Meeting and of a national survey he publicized early in 1960.143 In 1961, Hill
called for a nation-wide apprenticeship training program in the Steel Industry and began
meetings with USWA officials while labor speakers at the Association’s annual convention
highlighted the issue.144
After the NAACP filed its legal actions in the fall of 1962, however, the opportunities for
cooperation seemed closed. Frustrated with what the NAACP and many black workers saw as
glacial change in even the most racially progressive internationals, Hill pursued an increasingly
vigorous and public attack on individual unions. By the time the NAACP filed its legal
complaints in 1962, Hill had become persona non grata among officials throughout the American
labor movement.145 While the black press hailed him, even A. Philip Randolph’s recently formed
Negro American Labor Council defended the NAACP, but declined to counter the charges flying
at Herbert Hill.146 Hill’s employer, however, seemed thrilled by the fight. “Nothing has given the
142
Annual Convention Records, June 26, 1956, LCMD, P1-Supp.1.1-R4: 278-300; Executive Office Reports,
September 9, 1957, LCMD, P1-Supp.1.1-R1: 434-37.
143
“Dangers of Automation Cited by Herbert Hill,” January 4, 1959, LCMD, P1-Supp.1.1-R2: 740; Executive
Office Reports, March 14, 1960, LCMD, P1-Supp.1.1-R2: 315-18.
144
Board of Directors Meeting, February 14, 1961, LCMD, P1-Supp.1.2-R1: 445-448; Adam C. Powell, July 14,
1961, LCMD, P1-Supp.1.2-R3: 253-54; A. Philip Randolph, July 14, 1961, LCMD, P1-Supp.1.2-R3: 255-262.
145
“NAACP Moves to Punish Union,” New York Times (October 31, 1962), 13; Stanley Levy, “Meany Denounces
Aide of NAACP,” New York Times (November 10, 1962), 1; Executive Office Reports, November 13, 1962,
LCMD, P13-Supp.-R1: 704-5; George Meany to Roy Wilkins, November 20, 1962, LCMD, P13-Supp.-R1: 943-45;
Board of Directors Meeting, December 10, 1962, LCMD, P1-Supp. 1.2-R1: 719-20. Hill’s August, 1962
Congressional testimony alleging discrimination by the International Ladies Garment Workers Union, a supporter of
the NAACP that was widely regarded as one of the most progressive unions, compounded national labor officials’
perception of betrayal. For NAACP conflict with the ILGWU and its defense of Hill see, Board of Directors
Meeting, October 8, 1962, LCMD, P1-Supp.1.2-R1: 147-53; Board of Directors Meeting, November 13, 1962,
LCMD, P1-Supp.1.2-R1: 154-160; Board of Directors Meeting, December 10, 1962, LCMD, P1-Supp.1.2-R1: 16164.
146
Stanley Levy, “Negro Labor Unit Backs NAACP But Declines to Endorse Hill After Debate,” New York Times
(November 12, 1962), 23.
Association a greater image of aggressiveness in recent months than the handling of this
situation,” the Board concurred at its November meeting. In a time when the younger generation
was putting pressure on older civil rights organizations to radicalize, this was a good thing.147
Even as the NAACP’s most controversial claim against the USWA met a quick death in
front of the Board in the winter of 1962, Wilkins backed the NAACP’s action to a critical
George Meany.148 In a four page letter offering a lengthy review of the extensive and persistent
discrimination in the labor movement and the NAACP’s exhaustive efforts to resolve its
complaints by negotiation and through use of unions’ internal governance mechanisms, Wilkins
concluded his letter with a pointed comparison. “Desegregation in the labor movement,” he
wrote, “has proceeded at no more rapid a rate than the disgraceful crawl of public school
desegregation in the South.”149
Winning a Constitutional Right to Union Voice
In December of 1962, the NAACP’s NLRB-focused constitutional campaign got a boost
from an unlikely quarter. On December 10, 1962, the NLRB issued a surprising decision. Since
it was first certified in 1956, the Drivers, Dispatchers, and Shop Employees Union had
negotiated contracts with the Houston, Texas Pioneer Bus Company that consistently segregated
black and white workers into separate bargaining units, each of which had separate
representation and lines of promotion. A rival AFL-CIO affiliate, the Transport Workers of
America, filed a petition with the Board, arguing that if the Board recognized the discriminatory
contract, it would be engaging in unconstitutional state action. The Board seemed to agree.
147
The members of NAACP branch Youth Councils were aggressively pursuing employment issues through
picketing and boycotts across the country. See, for example, Board of Directors Meeting, November 13, 1961,
LCMD, P1-Supp.1.2-R1: 571; Board of Directors Meeting, March 11, 1963, LCMD, P1-Supp.1.2-R1: 757. See also,
Jonas, Freedom’s Sword, 174-75.
148
In November, 1962, the NAACP appealed the Board’s prompt dismissal of its complaint against the USWA.
USWA, Local No. 2401, NLRB Case No. 10-CB-1360-1 to 13, November 26, 1962, LCMD, P13-Supp.-R11: 104112.
149
Roy Wilkins to George Meany, December 7, 1962, LCMD, P13-Supp.-R1: 966-70
“Consistent with clear court decisions in other contexts which condemn governmental
sanctioning of racially separate groupings as inherently discriminatory, the Board will not permit
its…rules to be utilized to shield contracts such as those here.”150 The Board justified its finding
with a cite to Brown v. Board of Education as well as some recent non-employment related
Supreme Court cases that had begun to stretch the state-action doctrine’s boundary between
private and public.151
The decision’s significance for the NAACP’s campaign did not go unremarked. John D.
Pomfret, reporting on the decision for the New York Times noted that, “[t]he ruling gave a lift to
the hopes of the [NAACP]…in three cases on which the board has not yet acted.”152 Then, the
following week, the Board issued a ruling in a separate non-race-discrimination case that, for the
first time since the 1947 Taft-Hartley Act placed “discrimination” in the NLRA, the Board
would take these sections of the act to include violations of unions’ duty of fair representation.153
When the NAACP convened for its annual meeting three weeks later in January of 1963,
the Board members and staff were emboldened by the past months’ developments. Roy Wilkins,
in his address to the Board, charged that “the desperate plight of the Negro worker is our
mandate as we press this year against the racial restrictions and policies imposed by employers.”
Publicity, complaints to government agencies, and selective buying campaigns would be their
tools. As for the remaining restrictions in the trade union movement, Wilkins promised
cooperation with any serious and speedy union plan. But, “in cases of stand-pat-ism and
malingering,” the NAACP promised to file charges with the Board.154
150
Pioneer Bus Co. v. Transportation Workers of America, 140 NLRB 54, 55 (1962).
Id., at note 3, citing Brown v. Board of Education, 349 U.S. 294 (1954); Bailey v. Patterson, 369 U.S. 31 (1962);
Boynton v. Virginia, 364 U.S. 454 (1960), Burton v. Wilmington Parking Authority, 365 U.S. 715, (1961).
152
John D. Pomfret, “N.L.R.B. Will Act on Racial Issue,” New York Times, (Dec. 13, 1962), 5.
153
Miranda Fuel Co., Inc., 140 NLRB 181 (1962).
154
Roy Wilkins, Annual Meeting, remarks, January 7, 1963, LCMD, P1-Supp.1.2-R2: 102-07.
151
The NAACP would not be alone in this struggle. The next month, during his special
address on civil rights, President Kennedy detailed his administration’s efforts in the field of
employment discrimination. He reported that his CEEO had resolved nearly three-quarters of the
more than 1,300 complaints it had received in the past two years and that hundreds of companies
and over one hundred unions representing about 85% of the AFL-CIO’s membership had signed
agreements with the committee “calling for an affirmative attack on discrimination in
employment.” In addition, he reported that he had acted to fight discrimination by government
employers and public employees’ unions. “Outside of Government employment,” the President
continued, “I have directed the Department of Justice to participate in [the pending NLRB union
discrimination] cases and to urge the National Labor Relations Board to take appropriate action
against racial discrimination in unions.”155
That same day, the Board’s Trial Examiner issued his decision in the NAACP’s Hughes
Tool case. The issues in Hughes Tool blended the old and the new in the NAACP’s labor
campaigns. For decades, Local 1 and Local 2 had operated with segregated membership,
segregated seniority, and segregated jobs.156 When their 1961 contract negotiations came around
Local 2’s members protested the racial lines for jobs and promotions, requesting a clause
promising to equalize job opportunities within two years. Instead, in December of 1961, the
white local and the employer signed the existing contract and added a special side agreement that
created six apprenticeship positions for the all-white, well-paying Tool and Die department.
Local 2 refused to sign the new contract.
Ivory Davis had worked at Hughes Tool for twenty years—nearly as long as the
Office of the White House Press Secretary, “The White House Special Message on Civil Rights,” February 28,
1963, available at www.congresslink.org.
156
The story leading up to the Hughes Tool NLRB case is taken from the Trial Examiners detailed report, included
in Hughes Tool, 147 NLRB 1573 (1964).
155
IMWU had been in existence—and was an official in Local 2. Despite the clear racial
demarcation of the new apprenticeship positions, when Hughes Tool asked for applicants
in February of 1962, Ivory Davis signed up. When the employer ignored his request,
Davis filed a complaint with Local 1. The union’s grievance committee failed to respond.
Davis, along with the president of Local 2, filed a petition with the local NLRB office
accusing Local 1 of violating the Taft-Hartley amendments which the Board had declined
all these years to apply to cases of race discrimination. In August of 1962, the Board’s
General Counsel announced that he would pursue Ivory Davis’s case. As the General
Counsel noted to the press, the case would be a first “in the 27-year history of the
National Labor Relations Act.”157
In October of 1962, before the Board took any further action on the matter, the
employer notified its employees that it had taken a federal contract which required it to
post a non-discrimination policy reaching, among other things, its apprenticeship and
training programs. Nine days later, Local 1 posted its own notice stating that it expected
the employer to continue to honor the existing discriminatory contract. It was at this point
that the NAACP got involved, filing its own motion with the Board on behalf of Local 2.
The NAACP’s complaint charged that Board certification of a union that denied black
workers’ voice and influence in workplace governance, that limited their job and
apprenticeship opportunities, and that failed to grieve their charges violated the
Constitution.158
“NLRB to Charge Union With Discrimination,” New York Times (August 21, 1962), A13.
Hughes Tool Company, NLRB case no. 23-RC-1758, October 24, 1962, LCMD, P13-Supp.-R11: 14853; “N.A.A.C.P. Accuses Hughes Tool Union,” New York Times (October 26, 1962), 5 (this article
mistakenly refers to Ivory Davis as Ivory Jones).
157
158
Using the same ambiguous reasoning that the Supreme Court perfected in the Railway
Brotherhood cases of the 1940s and 1950s, the Trial Examiner in the Hughes Tool case ruled in
favor of the all-black IMWU Local 2, but stopped short of declaring clear constitutional reasons
for doing so. Nonetheless, the Trial Examiner’s constitutionally inflected recommendations
embraced a principle of fairness based on black workers’ full and equal access to the statutorily
protected mechanisms of collective action and workplace citizenship; in the words of the New
York Times, their “union rights” to voice and participation.159 The Trial Examiner’s
recommendations would now get forwarded on to the National Board for it to review and amend,
reject, or approve.
While the NAACP waited for the full Board to act, it continued to pursue its other
workplace litigation. In April of 1963, it announced plans to file charges against the BPMU.160
That fall, Robert W. Ming, Jr., a member of the NAACP Board and a University of Chicago Law
School professor who had worked on many of the Association’s landmark civil rights cases, filed
an action on behalf of two young men denied admission to a Chicago building trades’
apprenticeship program.161 In a lengthy opinion, the federal district court judge who heard the
case agreed with Ming’s expansive state action argument, ruling that the apprenticeship
program’s various forms of government assistance made it liable for infringing on the
constitutional “rights of negroes to learn and earn a living.”162
In May of 1964, the federal court of appeals declared the Chicago apprenticeship case
moot.163 However, if the NAACP’s constitutional workplace claims were frustrated in the courts,
“N.L.R.B. Aide Urges Ouster of Hughes’ Unions for Racism,” New York Times (March 1, 1963), 5.
“NAACP Protests Jim Crow in Building Trades Unions,” April 12, 1963, LCMD, P13-Supp.-R11: 76.
161
For instance, Ming worked on the NAACP’s World War II NLRB state action and union discrimination case as
well as on the its more well-known education cases.
162
Todd v. Joint Apprenticeship Committee, 223 F. Supp. 12, 15 (N.D., Ill., 1963).
163
Todd v. Joint Apprenticeship Committee, 332 F.2d 243 (7th Cir., 1964)
159
160
they were cresting in front of the Board. On July 2, 1964, on the very day President Johnson
signed the 1964 Civil Rights Act into law, the NLRB issued an unpretentious, technical, perhaps
even dry opinion declaring that the Constitution required it to sanction unions’ discriminatory
practices. “[R]acial segregation in membership, when engaged in by such a representative,
cannot be countenanced by a Federal agency…” the three-member Board majority wrote.164 In
case the state action theory underlying this statement was unclear, the Board followed it up with
a footnote that linked the Supreme Court’s public school desegregation decisions with its recent
more expansive state-action decisions.165 Furthermore, the Board majority asserted that Local 1
must lose its certified status for its negotiation and administration of racially discriminatory
contracts. “[W]e…cannot validly render aid under [the NLRA] to a labor organization which
discriminates racially when acting as a statutory bargaining representative,” the Board intoned. A
string of constitutional Supreme Court cases supported its ruling.166 “We hold too,” the opinion
continued, “that the certification should be rescinded because Locals Nos. 1 and 2 discriminated
on the basis of race in determining eligibility for full and equal membership.”167 This holding,
the Board explained, also had its roots in the Constitution.168
The next day, the Board’s Hughes Tool ruling made the front page of the New
York Times, a space it shared with the 1964 Civil Rights Act signed by President Johnson
hours after the Board’s decision.169 “Robert L. Carter, general counsel for the National
Association for the Advancement of Colored People,” the article noted, “called the
164
Hughes Tool, 147 NLRB at 1574.
Id. (citing Brown v. Board of Education, 347 U.S. 483 (1954); Bolling v. Sharpe, 347 U.S. 497 (1954); Shelley v.
Kraemer, 334 U.S. 1 (1948); and Hurd v. Hodge, 334 U.S. 24 (1948)).
166
Hughes Tool, 147 NLRB at 1577. See supra note 165 for a description of the cited cases.
167
Hughes Tool, 147 NLRB at 1577.
168
Id., at 1577-78.
169
John D. Pomfret, “Union Race Discrimination Is Ruled an Unfair Practice,” New York Times (July 3, 1964), 1.
165
decision ‘almost revolutionary.’”170
The author of another article that day concurred. The NLRB ruling, the analyst
noted, was “more sweeping” than the Equal Employment Opportunity Title of the Civil
Rights Act because it was “effective immediately, subject only to judicial review.”171
Title VII, in contrast, required the Civil Rights Commission to first attempt to persuade
offenders to voluntarily comply and then to exhaust state anti-discrimination machinery
before anything could be done in the courts. The NAACP, after decades of trying that
route, had reason to be skeptical.
Conclusion
Over the next months, the Board affirmed that its ruling in favor of AfricanAmerican workers’ “union rights” had not been a chimera. Encouraged by these wins, the
NAACP excitedly publicized this new “formidable weapon” with which “to eliminate
employment discrimination.” Robert L. Carter, the attorney who won the Hughes Tool
case, urged all NAACP branches to publicize the organization’s new “weapon,” to
investigate members’ claims of discrimination, and to forward these cases to the national
office which stood ready to “spend a major part of [its] time in assisting employees who
desire representation before the Board”172 In his September 1964 report to the NAACP
Board, Carter celebrated this “landmark decision in the field of labor law” and Roy
Wilkins hailed it as a “key advance” at the Annual Meeting the following January.
Little was ever made of the decision’s constitutional roots and, despite their heady
initial hopes, Title VII of the Civil Rights Act eventually swallowed the field of
170
Id.
Arthur Krock, “In the Nation: Two Concurrent Bans on Discrimination by Unions.” New York Times (July 3,
1964), 20.
172
Robert L. Carter to Branch Presidents, August 13, 1964, LCMD, P13-Supp.-R11: 113.
171
workplace anti-discrimination litigation. African-Americans seemed to have won their
constitutional rights to participate in collective governance of the workplace just as the
labor movement began its lengthy slide into irrelevance.173 Nonetheless, it took years
before the imperceptible incremental losses of industries, legal protections, and political
vibrancy made this change known. For another fifteen years after it was affirmed by the
Board, the NAACP’s expansive state action argument continued to shape NLRB policy
and spark debate in the legal and labor community.174 Even today, when union power has
eroded to such an extent that the idea of an NLRB decision commanding front-page
coverage seems unimaginable, the Constitution continues to flit around the “union rights”
of women and workers of color.175 Hughes Tool, the NAACP campaign that led up to it,
and the decision’s lingering life serve as a reminder that the legal struggle for
constitutional rights in the ostensibly private workplace was not a battle lost, but a battle
that has simply been forgotten.
173
For a searing account of this decline, see, George Lipsitz, Rainbow at Midnight: Labor and Culture in the 1940s
(Urbana, 1994), Introduction.
174
See, Bekins Moving and Storage, Inc., 211 NLRB 138 (1974); Handy Andy, 228 NLRB 447 (1977); Bell &
Howell Co. v. N.L.R.B., 598 F.2d 136 (D.C. Ct. App., 1979).
175
Bell & Howell, which recognized the Constitution’s role in shaping the parameters of unions’ duty of fair
representation still guides this doctrine today. William W. Osborne, Jr., ed., Labor Union Law and Regulation
(2003), 282-285, 351-52.