Paul Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party

In Black and Blue, Paul Frymer describes how the American State’s fragmented labor policy in the mid 20th century caused the labor movement to clash with the civil rights movement, resulting in the integration of labor unions via financially crippling litigation and organized labor’s permanent decline. Specifically, the Wagner Act of 1935 authorized workers to elect their own unions representatives, but it failed to provide for a duty of fair representation, and consequently the agency created by the Act to protect unions from employer sanction, the National Labor Relations Board (NLRB), lacked jurisdiction over civil rights issues. Conversely, when the Civil Rights Act of 1964 was passed, it created the Equal Employment Opportunity Commission (EEOC), which was eager to punish labor unions for violating Title VII of the Act but lacked the “cease and desist” powers to do so. Consequently, the EEOC relied heavily on litigation, lodged by the NAACP and corporate lawyers representing African American workers via class action lawsuits, to enforce the Civil Rights Act. Courts proved eager to integrate labor unions and to enforce civil rights law but, along the way, they largely ignored labor law and undermined workers’ ability to collectively bargain. By bleeding labor unions to death via litigation, courts undermined labor power. Insodoing, they permanently weakened one of the constitutive pillars of the Democratic Party as well as an organizational structure which, if reformed, could empower African American workers. In short, the racist foundations of the New Deal State, and the failure of electoral democracy, promoted civil rights leaders to turn to the courts to integrate labor unions. In turn, the courts relied on formalistic definitions of representation to enforce civil rights law and undermine labor law, thereby ignoring democracy’s inherent messiness and failing to see how democratic equality sometimes requires not simply a focus on representation but also on power and outcomes.