Last week we read Chapter Ten in Labor Law Stories, Calvin William Sharpe, Marion G. Crain & Reuel E. Schiller's The Story of Emporium Capwell:  Civil Rights, Collective Action, and the Constraints of Union Power.  No practice tips jump out at me.  Instead, I simply share some of my reflections on the case and the story.

Emporium Capwell involved a group of black employees, represented by a union, who were discriminated against by their employer.  The union grieved the claims and planned to arbitrate each claim individually.  Some of the black employees, frustrated with the process of bringing claims individually rather than on a group basis, refused to participate in the arbitration hearings, boycotted the employer, and sought to speak directly with the employer about settling the dispute.  The employer fired the employees.  The attorney representing the employees filed a charge under the National Labor Relations Act (the Act).  And the case, thus, proceeded as a labor case.  (An employment discrimination case was also brought under Title VII thereafter.) 

In an opinion authored by Justice Marshall, the Supreme Court upheld the terminations.  Emporium Capwell stands for the doctrine of exclusivity.  The bargaining representative is the exclusive representative of the employees.  Minority groups have no right to deal with the employer.  Minority groups that engage in concerted activity in an attempt to pressure the employer into dealing directly with the minority group, rather than the union, lose the protection of the Act.

Over the past fifteen years, I've read Emporium Capwell at different times and for different purposes.  I seem to recall that as a student and young attorney, I found it frustrating that the employees were not permitted to engage in direct action and protest.  As I read it again, to prepare for class as the professor rather than as a student, I found the case no less challenging than when reading it for the first time, though for different reasons.  It raises a series of seemingly intractable related legal issues.  Is there some flaw in Justice Marshall's reasoning?  Isn't there some other means to insure that dissent groups do not deal directly with employers short of permitting, in the employer's discretion, the termination of the group's members?  Is arbitration a suitable forum for class-action or pattern and practice claims?  Can individual claims, whether in arbitration or court, have as significant an effect on remedying discrimination as class-actions or pattern and practice claims?  Can unions waive their members' rights to bring statutory employment discrimination claims?  If not, are employers free to circumvent the exclusive representative and deal directly with employees in order to obtain such waivers?  The list, raised by many before me, goes on . . .

My initial reaction to the tactical decision of the dissident group's attorney to file a charge with the National Labor Relations Board (NLRB), however, remains the same.  Why didn't the attorney file a charge with the Equal Employment Opportunity Commission instead? 

After reading the story, the tactical decision makes more sense.  The NLRB decisions at the time gave the lawyer plenty of reasons to believe that an exception to exclusivity might be made for groups that protested racial discrimination.  Indeed, the D.C. Circuit ruled in the dissident employees' favor.  And even the Supreme Court had recently indicated that union grievance and arbitration might not be the most suitable forum for resolving discrimination issues.  In hindsight, it would have only made sense to pursue the claim under Title VII rather than under the NLRA.  But with foresight, the attorney could not have known this.  Indeed, on more than one occasion, I have been told by skilled appellate attorneys that they made their best estimate about the course a court would follow, yet ultimately their best estimate was off base.  Of course-a best estimate cannot be expected to be a crystal ball.