NLRB v. Mansion House Center Management Corp.

NLRB v. Mansion House Center Management Corp.

Opinion

 [*472]  LAY, Circuit Judge.

In our prior opinion filed September 14, 1972, 466 F.2d 1283, this court enforced the National Labor Relation Board's finding that the respondent company had violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act. We expressly reserved decision following supplemental briefing ¹ on the remaining contention of the respondent company: whether or not the National Labor Relations Board may require an employer to bargain with a labor organization if that organization practices racial discrimination in its membership. ² 

 [**2]  Today membership in a union is often the sine qua non for obtaining employment in most skilled crafts in this country; it frequently spells the difference between lucrative employment and exclusion from the craft. Therefore, a union which discriminates in membership against blacks effectively deprives blacks of employment opportunities. Judge Tuttle in Culpepper v. Reynolds Metals Company, 421 F.2d 888, 891 (5 Cir. 1970), pointed out that, "racial discrimination in employment is one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies and chooses."

It is well settled that ] the Equal Protection Clause of the Fourteenth Amendment prohibits any state, or individual acting under the color of state authority, to discriminate upon the basis of race, color or religion. ] The Fifth Amendment's Due Process Clause has been held to legally encompass the Equal Protection Clause of the Fourteenth Amendment, thereby placing the same constitutional limitations [**3]  on federal action as restrict station action. Colorado Anti-Discrimination Commission v. Continental Airlines, Inc., 372 U.S. 714, 721, 83 S. Ct. 1022, 10 L. Ed. 2d 84 (1963); Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954). In Schneider  [*473]  v. Rusk, 377 U.S. 163, 168, 84 S. Ct. 1187, 1190, 12 L. Ed. 2d 218 (1964), the Court, speaking through Mr. Justice Douglas, said: "While the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'" That racial discrimination is so invidious as to be unjustifiable cannot be denied. ³ [**4]  Accordingly, any recognition or enforcement of illegal racial policies by a federal agency is proscribed by the Due Process Clause of the Fifth Amendment. See Gautreaux v. Romney, 448 F.2d 731, 740 (7 Cir. 1971); cf. Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S. Ct. 813, 96 L. Ed. 1068 (1952). ⁴ 

The Board on one occasion gave recognition to these principles by [**5]  directly holding that ] unions which exclude employees from membership on racial grounds may not obtain or retain a certified status under the Act. Independent Metal Workers Union, Local No. 1, 147 N.L.R.B. 1573, 56 L.R.R.M. 1289, 1294 (1964). ⁵ Cf. Pioneer Bus Company, Inc., 140 N.L.R.B. 54, 51 L.R.R.M. 1546 (1962). Collective bargaining is the fulcrum of successful labor-management relations throughout the country. Our national labor policy views union membership as a necessary good to most all working men. HN7] When a union discriminates on the basis of race or color it invidiously deprives equal opportunity for employment to a large segment of working men. See Sovern, The National Labor Relations Act and Racial Discrimination, 62 Colum. L.Rev. 563 (1962). When a governmental agency recognizes such a union to be the bargaining representative it significantly becomes a willing participant in the union's discriminatory practices. Although the union itself is not a governmental instrumentality the National Labor Relations Board is. N.L.R.B. v. Nash-Finch Co., 404 U.S. 138, 92 S. Ct. 373, 30 L. Ed. 2d 328 (1971). Moreover, here the Board [**6]  seeks judicial enforcement of its order requiring collective bargaining in a federal court. Obviously, HN8] judicial enforcement of private discrimination cannot be sanctioned. Cf. Barrows v. Jackson, 346 U.S. 249,  [*474]  73 S. Ct. 1031, 97 L. Ed. 1586 (1953); Hurd v. Hodge, 334 U.S. 24, 68 S. Ct. 847, 92 L. Ed. 1187 (1948); Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). ⁶ 

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