Abstract

Excerpted From: Ty Parks, Unions, Black Workers, and Criminal Records: Reckoning with the Labor Movement's History of Racial Discrimination Should Lead it into the Future, 27 University of Pennsylvania Journal of Law and Social Change 71 (2024)(256 Footnotes) (Full Document)

In his 2023 State of the Union address, President Joe Biden proclaimed to the nation that “workers have a right to form a union.” This pronouncement, factually supported by Section 7 of the National Labor Relations Act (“NLRA”), was a nod to the millions of Americans that support labor unions. As of 2022, a Gallup poll found that “seventy-one percent of Americans now approve of labor unions”--an approval rating they have not recorded since 1965. Labor's support from the President *73 and the public coincides with increased unionization efforts. 2022 saw approximately 200,000 workers join the “more than 16 million other workers in the United States represented by a union.” The workers who successfully joined unions are only the tip of the iceberg, as polling indicates that there are more than “60 million workers in 2022 [that] wanted to join a union, but couldn't.” In the words of the White House, Labor is certainly having a “moment.”

Black workers and other workers of color are predominately responsible for this new wave of the Labor Movement. As explained in a report by the Economic Policy Institute, “[t]he entire increase in unionization in 2022 occurred among workers of color--workers of color saw an increase of 231,000 while white workers saw a decrease of 31,000.” Of the major racial and ethnic groups, Black workers had the highest unionization rate in 2022, at 12.8%, while white workers had a unionization rate of 11.2%. In addition to maintaining membership numbers, Black workers have been leading efforts to unionize corporate workplaces that have long resisted unionization. In 2022, after a few years of organizing, Christian Smalls, a “working-class Black man,” led an election victory to certify the first Amazon union in the United States. Despite Amazon officials dismissing Smalls as “not smart or articulate,” they have failed to overturn his victory despite their continuous challenges. Amazon Labor Union's certification was a significant milestone in recent efforts by the Labor Movement to unionize workers at corporations like Starbucks, Trader Joe's, and Apple. With these efforts on his shoulder, Smalls solidified himself as the “face of America's new labor movement” when he met President Biden at the White House while wearing a jacket embroidered with the words “Eat the *74 Rich.”

Black workers like Christian Smalls have strong economic incentives to take on this fight for union representation and a collective bargaining agreement. With union membership, Black workers earn higher wages and are more likely to have access to health insurance and retirement benefits than non-unionized Black workers. Black union workers covered by a collective bargaining agreement receive a wage increase of 13.1% from joining the agreement, which is higher than the 10.2% average wage boost for all unionized workers. As a result of this difference, unionization is a powerful tool to help narrow the racial wealth gap between Black and white workers. The narrowing of the Black-white wage gap through unionization began in the 1940s, when there were similar disparities between wage premiums. Subsequently, the decline in unions “played a significant role in the expansion of the Black-white wage gap,” leading economists to speculate that “unionization is a crucial step in reversing those trends.” Reversing this trend is crucial for Black Americans, who have one-eighth the wealth of white families, experience unemployment rates two times those experienced by white Americans, and whose households earn 62 cents for every dollar earned by white households.

While Black workers have been spearheading the resurgence of unionization, present-day Labor's membership is far from what it was in the last century. Today, only 6.4% of private-sector and 10.5% of workers overall are represented by a union. This is the “lowest percentage in more than a century, and down from 35 percent in the 1950s.” Labor powerhouses like United Automobile Workers' membership dwindled from 1.5 million at its peak in 1979 to approximately 400,000 members today. This decline of unions stands on top of Labor's pivotal victories that won workers, unionized or otherwise, “unemployment insurance, old age pensions, government relief for the destitute, and above all new wage levels that meant not mere survival, but a tolerable life.” These reforms, outlined by Dr. Martin Luther King Jr., were won through “bold struggles [of] economic and social reform.” *75 Scholars disagree on exactly why unions have declined, but this decline clearly correlates with unprecedented concentration of wealth, lower wages, and a declining share of labor income.

Considering the current state of unions, and what was lost because of their decline, Labor must capitalize on this moment of unionization by mobilizing the workers proving most crucial to the current resurgence--workers of color, generally, and Black workers, specifically. Building back Labor's large membership pool is essential to return to achieving broad workplace victories. Therefore, targeted organizing of Black and other workers of color should include unionization campaigns focused on industries and workplaces predominately composed of this demographic, but targeted organizing should not be limited to this strategy. If Labor wants to effectively invest in unionizing workers of color to build its membership, it must invest in efforts to bring in workers of color into the workforce. Simply put, a forward-looking Labor Movement addresses the barriers to employment for workers of color.

The systemic exclusion of workers of color is not an unfamiliar phenomenon to Labor. In 1902, W.E.B. Du Bois wrote in a social study of Black workers, that “[t]he labor unions, with 1,200,000 members have less than 40,000 negroes [sic], mostly in a few unions, and largely semi-skilled laborers, like miners. Color prejudice keeps the mass of negroes [sic] out of many trades.” This early account of racial discrimination reflects the status quo for Black workers' relationship with unions, with limited *76 exceptions, well into the next fifty or so years. In fact, the National Labor Relations Act, regulating labor unions and their relationship with employers, was largely influenced by Southern Democrats' desire to maintain Black subordination in the workplace economy. Enforcement of Title VII of the Civil Rights Act of 1964 turned the tides on Labor's ability to exclude Black workers, as courts found unions liable for racial discrimination and implemented remedies that required integration.

In spite of the protections provided by Title VII, I argue, Labor connected itself to an alternative legal basis to exclude Black and other workers of color: criminal record discrimination. As a case study, this paper focuses on the International Union of Operating Engineers, Local 542 (“Local 542”) in Philadelphia, Pennsylvania. Months after a federal court ordered Local 542 to implement an historic plan that required recruitment of more Black workers to their union in 1980, Pennsylvania enacted a statute that permitted employers and the Pennsylvania Board of Licenses to consider criminal records in their hiring and firing determinations. Notably, in 1980, the percentage of Black men with criminal records was more than three-times than the percentage of men overall with one. For Local 542, whose members included workers required to have a license for their trade or who were subject to the preferences of a contractor, de facto racial discrimination through criminal record exclusion could implicate employment. This investigation of Local 542 is suggestive of a history larger than itself-- whether intentional or not, the opening up of unions under Title VII for workers of color coincided with the rise of criminal record exclusion laws.

Examining Labor's history, however controversial or damning, is integral for a comprehensive understanding of the present. In reference to histories of white supremacy, Professor Hope Wabuke writes that “without learning [a] history ... nothing will ever be made right.” Labor scholars understand this, as they've called for confronting various aspects of Labor's history to guide the movement's next steps, including its broad history of racial exclusion. However, Labor has yet to *77 specifically reckon with its connection to criminal record discrimination. This Comment explores this history to contribute to the broader scholarship of Black unionization, which is essential to the work of developing Labor. As the advocate for workers, Labor must understand its history of exclusion, then work to undo it by dismantling criminal record discrimination. This is how Labor gets stronger.

In reckoning with this history, it's essential to understand why Black unionization is important to Black communities. As explained, unions are powerful institutions that can directly increase the wealth of individual Black workers. However, Labor also has the potential to economically liberate Black communities from systemic poverty. This opportunity to deconstruct racial subordination is why Black Americans have actively sought access to these institutions. Continuing this effort, my purpose in writing this Comment is the pursuit of Black liberation. Black communities need unions and unions need the Black community.

This Comment proceeds as follows: Part I examines how collateral consequences of a criminal record materialize as de facto racial discrimination, specifically in the employment context. Part II shifts to a focused historical analysis of Labor's connection to criminal record discrimination as de facto racial discrimination. Part III implores Labor to invest in dismantling criminal record discrimination to bolster its strength as a movement.

[. . .]

In his 2022 essay in the Philadelphia Inquirer, labor organizer Paul Prescod pointedly asserted that “[t]he labor movement cannot afford to rest on the laurels of past glory days.” Instead, Prescod exhorts Labor to place workers of color squarely at the center of its mission: “Unions are at their strongest when they project a broad social vision and seek to be the champions of all working people. Philadelphia's labor movement needs to protect the fragile gains it has already made with a diverse workforce. But sometimes the best defense is offense.”

Labor's offensive efforts to secure a strong future for workers must include dismantling criminal record discrimination, which operates as de facto racial discrimination given the substantially disproportionate criminalization of Black people. Black workers and other workers of color are demonstrating that they are ready to work collectively against their employers. To capitalize on this energy, nonwhite workers need easier access to the workplace, so that they can join or form a union.

Labor's connection to the history and use of this barrier to the workplace does not detract from their role in the fight. Because Labor is the “watchdog for working people,” its history of racial discrimination, including through criminal record discrimination, underscores the urgency of efforts on their part to undo that work. Legitimate advocacy for workers means advocating for all workers.

J.D. Candidate 2024, University of Pennsylvania Carey Law School; B.A. 2019, Columbia University.