Race, Labor, and the Twentieth-Century American State

AuthorPaul Frymer
Published date01 December 2004
Date01 December 2004
Subject MatterArticles
Race, Labor, and the
Twentieth-Century American State
The author examines the federal government’s civil rights promotion in labor
unions, focusing in particular on the consequences of this halting, fragmented
effort. After the government deflected racial politics fromlabor policy in the 1930s,
it attempted to integrate unions not by reforming labor law but by developingnew
agencies and empowering federal courts. This created an institutional environment
wheredifferent agencies worked at cross-purposes, and courts imposed greatfinan-
cial costs on unions. The result of this effort was a host of unintended consequences
for unions and civil rights groups. By putting race at the center, it also suggests an
alternative understanding of the twentieth-century American state.
Keywords: race; labor; law; American political development
Between 1935 and 1985, African American labor union members increased
from an estimated fifty thousand to more than three million.1The federal govern-
ment played a critical role in this civil rights achievement by passing legislation,
issuing executiveorders, arming new bureaucracies, and encouraging private law
suits to counter resistant discriminatory unions. I examine this federal effort from
a historical-institutional perspective, taking into account the long-standing
impact of the government’s various policy choices and the constraints that each
decision made for future efforts at labor–civil rights policy making. Federal labor
Thanks go to Amy Bridges, Kerstin Carlson, Tony Chen, Michael Haedicke, Jeff Haydu, Dan
Kryder, Margaret Levi, George Lovell, Michael McCann, Shehzad Nadeem, Ruth O’Brien, Corey
Robin,John Skrentny, Dorian Warren,and the editorial board at Politics& Society. I also appreciate the
generous financial support from the University of California’s Institute for Labor and Employment.
POLITICS & SOCIETY, Vol. 32 No. 4, December 2004 475-509
DOI: 10.1177/0032329204269980
© 2004 Sage Publications
union policy, the outcome of political struggles in the 1930s, crystallized into
institutional arrangements that impeded future civil rights reform. By creating
multiple institutions that were often in direct conflict with each other, this policy
effort ended in unintended and undesirable consequences for labor, civil rights
activists, and the Democratic Party’s New Deal coalition.
When politicians passed the National Labor Relations Act (NLRA or Wagner
Act) in 1935, they did not include antidiscrimination measures fought for by civil
rights groups. The Democratic Party’s reliance on southern segregationists to
achieve legislativegoals prohibited any type of civil rights policy. To rectify this
failure, the government neither reformed the NLRA nor instituted changes
through the National Labor Relations Board (NLRB), but instead responded with
a series of “patchwork” reforms, creating new agencies at different historical
moments with varying powers.2No one agency was given total control or ade-
quate weapons to accomplish civil rights reform in labor unions. By the late
1960s, the federal government’s handling of union discrimination had become
one of “patterned anarchy,”as multiple agencies were addressing the issue in dif-
ferent ways, working at cross-purposes, and producing inefficient and conflicting
policies.3Federal courts became most active in resolving the quagmire by punish-
ing resistant unions with often overwhelming financial penalties in the course of
courtroom litigation.4In the process, however,courts scaled back many important
New Deal protections of union workers. Few individuals within the courts or
among the myriad bureaucrats involved in this policy struggle were sensitive to
the political and financial strain their actions put on the broader labor movement.
Thus, the 1960s and 70s was a time period not only when the civil rights move-
ment was having success integratingunions but when unions were losing consid-
erable economic and political clout both with regard to their collectivebargaining
power vis-à-vis employers and in national politics.5Large numbers of white
union members voted for George Wallace and Richard Nixon, further weakening
the New Deal order and enabling harmful retrenchments by the Republican Party
in the areas of both labor and civil rights policy.6On the job, this had a very real
impact for civil rights economics: while the percentage of African Americans in
unions increased, in many industries the overall number of union members,
including African American union members, declined.7
This history of labor civil rights policy also has important implications for
scholarship on the American state. First, this historical-institutional account
shows that racial hierarchies were central to the foundation of New Deal labor
policy, not somethingthat “emerged” in the 1960s to destroy a universally benefi-
cial redistributiveprogram.8It was the racially exclusive nature of early twentieth-
century labor policy that necessitated later government action to promote civil
rights within the labor movement. It was a further weakness of state actions in the
1960s that forced federal courts and not Congress, the president, or a federal
bureaucracy, to be the final arbiter. The end result of these institutional weak-
nesses was a confrontation between two causes central to the Democratic Party—
white labor and civil rights groups—and quite arguably neither was left better for
it. Second, incorporating race into labor policy necessitates a reconsideration of
whether the passage of the Wagner Act was as fundamental to U.S. state building
as it is often characterized. Karen Orren, for instance, argues that the Wagner Act
dealt the final blow to American-style feudalism and allowed liberalism to flour-
ish as legislative majorities took control of national economic policy away from
courts.9But because legislativemajorities at the time were unable to confront civil
rights inequities, courts rather quickly worked their way back into labor policy,
doing so in a manner that weakened both legislative and union authority over
labor policy. By the 1980s, not only had labor unions declined dramaticallyasa
political and economic force but federal courts had in many ways regained their
position as the primary overseer of the workplace, often by interpreting statutes
but also by using common law and constitutional rights to overturn statutes and
create liberties for individual employees, to the direct detriment of national labor
unions. Third, it reminds us that while institutions in important ways structure and
place limits on the behavior of political actors, power—and here specifically,
racial power—remains an important dimension that shapes policy outcomes.In
academic efforts to show how institutions reign in strategic behavior, scholars
have increasingly forgotten that power lies underneath these institutions and con-
tinually shapes events in a manner that benefits specific groups and interests.
I proceed first with an overview of the historical context in which federal civil
rights policy engaged with labor unions. The bulk of the article explores the gov-
ernment’s response, beginning with the NLRA of 1935 and then examining sub-
sequent institutional developments involving the expanding use of the Depart-
ment of Labor (DOL), the formation of the Equal Employment Opportunity
Commission (EEOC), and finally, the activeinvolvement of federal courts. In the
conclusion, I return to the theoretical questions raised here and examine the role
of race in understanding theories of labor union decline. I argue that while race by
no means single-handedly led to union decline, it has been overlookedby scholars
as both an independent and contributing force.
Over the past decade, labor historians have heatedly debated the existenceof
racism and civil rights violations in the labor movement and the degree to which
white workers were responsible.10 Much of the scholarship on the labor move-
ment, whether written by historians, social scientists, or legal scholars, ignores
questions of race almost entirely, at best presenting it “as an actor in a subplot that
can be left on the cutting-room floor without violating the main story.”11 Among
those scholars who explore union race problems in greater detail,many argue that
it was caused by capitalist dynamics, micro and macro, rather than specific prob-

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