Race, Labor, and the Twentieth-Century American State

• Author: Paul Frymer
• Published date: 01 December 2004
• Date: 01 December 2004
• DOI: http://doi.org/10.1177/0032329204269980
• Subject Matter: Articles

10.1177/0032329204269980ARTICLEPOLITICS & SOCIETYPAUL FRYMER

Race, Labor, and the

Twentieth-Century American State

PAUL FRYMER

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

475

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-

476 POLITICS & SOCIETY

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.

THE CONTEXT: UNION DISCRIMINATION, CIVIL RIGHTS

ACTIVISM, AND THE NEED FOR A FEDERAL RESPONSE

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-

PAUL FRYMER 477