Is the NLRA Racist?

One way to think more deeply about issues of race in work and labor relations is to ask whether the National Labor Relations Act (NLRA) is racist. The NLRA was enacted in 1935 as part of the New Deal, and protects private sector workers’ rights to organize into labor unions and collectively bargain.

At its core, the NLRA is about workers, full stop, and the language of the NLRA is colorblind. Moreover, many Black workers have benefited from unionization. For at least the past 20 years, Black workers have had the highest unionization rates compared to Asian, Hispanic, and white workers, and for most of the postwar period, the positive effect of labor unions on household income has been stronger for people of color. Black workers also benefit from grievance procedures, standardized hiring and firing practices, and other policies that can help mitigate discriminatory practices. The AFL-CIO now explicitly champions racial justice.  

But it hasn’t always been this way. Like many other aspects of U.S. society, the labor movement has a mixed historical record with respect to race and discrimination. Historically, some unions advocated for inclusion while others were racist. Railroad and craft unions in the first decades of the 20^th century were particularly known for their racist, anti-Black stances, and in some cases there were still separate, segregated Black and white locals and restrictive membership policies in the 1960s.

White union leaders and members are ultimately responsible for this racist behavior, but there are several ways in which the NLRA systematically disadvantages Black workers relative to white workers. The NLRA allows unions to be the workers’ exclusive representative when a majority of workers favor this. So a majority of workers can significantly influence terms and conditions of employees for the rest. But in spite of NAACP lobbying, the NLRA did not contain an anti-discrimination requirement for unions, and the judicially-constructed duty of fair representation was only a weak substitute in the face of prejudiced union leaders and co-workers. The NLRA, therefore, gave unions significant power over workers—powers that were even stronger for the first decade in which closed shops (allowing unions to control access to jobs) were legal—but fell short of equally empowering Black workers. Indeed, in the 1940s and 1950s, the agency established by the NLRA to enforce it—the National Labor Relations Board (NLRB)—repeatedly allowed segregated locals and trivialized racist speech by unions during organizing drives. The courts were no better. For example, in 1959 the Supreme Court refused to hear an appeal of Oliphant v. Brotherhood of Locomotive Firemen & Enginemen in which the U.S. Court of Appeals allowed the union to continue banning Black workers from becoming members. It was not until the passage of the Civil Rights Act in 1964 that such discriminatory practices would be rendered illegal.

The lack of an explicit anti-discrimination provision in the NLRA is often attributed to the need for Senator Wagner and other early NLRA supporters to have the support of southern Democrats in Congress in order to get the NLRA passed. Unions were not very strong in the south, so as long as Jim Crow laws and norms that institutionalized and maintained white superiority were not threatened, then southern Democrats would support the NLRA. The preservation of Jim Crow in the south also led to another feature of the NLRA that significantly harmed Black workers—the exclusion of domestic and agricultural workers from the NLRA’s protections. These were the largest categories of employment for Black workers in the south, and their exclusion perpetuated the continued subjugation of them. 

The intentional perpetuation of racial inequality during the 1930s and 1940s becomes even more apparent when looking beyond the NLRA to other federal policies of that era. The Fair Labor Standards Act (minimum wages and overtime premiums), the Social Security Act, unemployment insurance, the GI Bill, and other programs either excluded agricultural and domestic workers or created programs that were ultimately administered locally, thus allowing for subtle and not-so-subtle discrimination in the application of these programs. As argued by Ira Katznelson, “by not including the occupations in which African Americans worked, and by organizing racist patterns of administration, New Deal policies for Social Security, social welfare, and labor market programs restricted Black prospects while providing positive economic reinforcement for the great majority of white citizens” which widened economic disparity; or as he captures with the title of his book: this was when affirmative action was white. Federal housing policy resulted in the same pattern of discrimination as the Federal Housing Administration used biased decisions about mortgages to segregate Black families in urban areas while subsidizing white home ownership in the suburbs, which widened racial wealth inequality.

Returning to the NLRA specifically, after the end of World War II, unionization of southern workers represented a greater threat than 10 years earlier, so to maintain the south’s racial order, southern Democrats in Congress changed course and teamed with Republicans to pass the Taft-Hartley amendments to the NLRA. The changes to the NLRA made it more difficult to organize workers and contributed to the failure of the labor movement’s Operation Dixie southern organizing campaign. The Taft-Hartley Act also allowed states to pass right-to-work laws prohibiting unions from charging workers dues and representation fees. Right-to-work laws have racist origins in that they were created to try to prevent the creation of solidarity among white and Black workers in the south. Indeed, a vocal supporter of right-to-work laws in the 1940s allegedly inflamed opposition to multiracial labor unions by saying that if left unchecked, “white women and white men will be forced into organizations with Black African apes whom they will have to call ‘brother’ or lose their jobs.”  

There are various ways, then, in which the NLRA—along with other New Deal and immediate postwar legislation—institutionalized and magnified existing power differences between Black workers and white workers in order to perpetuate patterns of inequality based on race. In other words, aspects of the NLRA contributed to institutional racism. In fact, the overrepresentation of people of color in the lowest-paid agricultural, domestic, and service occupations continues to this day. At the same time, the overall picture is complex. Many Black workers have benefited from the NLRA’s protections of unionization, and many whites have been excluded because they, too, work in domestic and agricultural occupations. Many provisions of the NLRA or subsequent legal interpretations have been shaped by ideologies pertaining to neoliberalism or the democratization of work rather than racial hierarchies. And workers of all races and ethnicities could benefit from labor law reform that strengthens the NLRA and other labor policies. But maybe not equally. And therein lies the issue—work isn’t always (only) about race, but we certainly shouldn’t be blind to the complicated ways in which race and labor intersect.