The Burger Court OpinionWriting Database

Emporium Capwell Co. v. WesternAddition Community Organization420 U.S. 50 (1975)

Paul J. Wahlbeck, George Washington UniversityJames F. Spriggs, II, Washington University in St. LouisForrest Maltzman, George Washington University

Auvrtint OnTt of tilt qtr OfattoAtokinton, 204g

CHAMBERS OF

THE CHIEF JUSTICE

January 24, 1975

Re: No. 73-696 - The Emporium Capwell Co. v.Western Addition Community Organization

No. 73-830 - NLRB v. Western Addition CommunityOrganization

Dear Thurgood:

I join in your opinion circulated December 18.

Regards,

Mr. Justice Marshall

Copies to the Conference

To : The Chief Justiceti

Mr. Justice Brennan ntt

Mr. Justice Stewart Mr. Justice White

CI

0=1

Mr. Justice Marshall7:1

Mr. Justice Blackmun 0

Srd DRAFT Mr. Justice Powell4

Mr.Justice RehnquistSUPREME COURT OF THE UNITED STATES

From: Douglas; J.Nos 73-696 AND 73-830

Circulate .//)? /

The Emporium Capw ell Co.,Recirculate •Petitioner,

73-696 v.

Western Addition Community On Writs of Certiorari toOrganization. the United States Court

of Appeals for the Dis-National Labor Relations trict of Columbia Cir-

Board, Petitioner, cuit.73-830 v.

MR. JUSTICE DOUGLAS, dissenting.The Court's opinion makes these union members—

and others similarly situated—prisoners of the union.The law, I think, was designed to prevent that tragicconsequence. Hence, I dissent.

Petitioners, who are black and were members of aunion through which they obtained employment by the CEmporium, would seem to have suffered rank discrimina-tion because of their race.' They theoretically had a c.cause of action against their union for breach of its dutyof fair representation spelled out in Steele v. Louisville R.Co., 323 U. S. 192. But as the law on that phase of theproblem has evolved it would seem that the burden on

the employee is heavy. See V aca v. Sipes, 386 U. S. 171,190, where it was held that the union action must be

"arbitrary, discriminatory, and in bad faith."

n

cnWestern Addition Community n

Organization et al. PT)

[December —, 19741 0

See appendix to this opinion.

To tit The Chief ;TUsffoeMr. Justice BcrMr. Justice L.Mr. Just(Mr. JucMr. JuLyMr. ,3*-

4th DRAFT

SUPREME COURT OF THE UNITED STATES

V

Nos. 73-696 AND 73-830From:

Circulate:

iroulate:RecThe Emporium Capwell Co,

Petitioner,73-696 '14

Western Addition CommunityOrganization.

National Labor RelationsBoard, Petitioner,

73-830Western Addition Community

Organization et al.

On Writs of Certiorari tothe United States Courtof Appeals for the Dis-trict of Columbia Cir-cuit.

[December —, 1974]

MR. JUSTICE DOUGLAS, dissenting.The Court's opinion makes these union members—

and others similarly situated—prisoners of the union.The law, I think, was designed to prevent that tragicconsequence. Hence, I dissent.

Petitioners, who are black and were members of aunion through which they obtained employment by theEmporium, would seem to have suffered rank discrimina-tion because of their race. They theoretically had acause of action against their union for breach of its dutyof fair representation spelled out in Steele v. Louisville R.Co., 323 U. S. 192. But as the law on that phase of theproblem has evolved it would seem that the burden onthe employee is heavy. See Vaca v. Sipes, 386 U. S. 171,190, where it was held that the union action must be"arbitrary, discriminatory, and in bad faith."

The employees might also have sought relief underTitle VII of the Civil Rights Act of 1964, which forbids

TO :

4th DRAFT

The Chief Justice.71

Mr. Justice BrennanMr. Justice StiAi7:trt

Mr. J1- . ,,,h.ar — e''!r. J117,t71, Mit,7)

11

SUPREME COURT OF THE UNITED STAM Dolii“o; J.

The Emporium Capwell Co.,Petitioner,

73-696 v.Western Addition Community

Organization.

National Labor RelationsBoard, Petitioner,

73-830 v.Western Addition Community

Organization et al.

[February —, 1975)

MR. JUSTICE DOUGLAS, dissenting.The Court's opinion makes these union members—

and others similarly situated—prisoners of the union.The law, I think, was designed to prevent that tragicconsequence. Hence, I dissent.

Petitioners„ who are black and were members of aunion through which they obtained employment by theEmporium, would seem to have suffered rank discrimina-tion because of their race. They theoretically had acause of action against their union for breach of its dutyof fair representation spelled out in Steele v. Louisville R.Co., 323 U. S. 192. But as the law on that phase of theproblem has evolved it would seem that the burden onthe employee is heavy. See Vaca v. Sipes, 386 U. S. 171,190, where it was held that the union action must be"arbitrary, discriminatory, and in bad faith."

The employees might also have sought relief underTitle VII of the Civil Rights Act of 1964, which forbids

On Writs of Certiorari tothe United States Courtof Appeals for the Dis-trict of Columbia Cir-cuit.

Nos. 73-696 AND 73-830 Circulate:

Recirculate: /C–g/

24wrinut QIIntrt a At Atitett Mate,Tragitingtatt, P. T. ZliAng

CHAMBERS OF

JUSTICE WM. J. BRENNAN, JR.January 2, 1975

RE: Nos. 73-696 and 73-830 The Emporium Capwell & N.L.R.B.v. Western Addition Community Organization

Dear Thurgood:

I agree.

Nos. 73-696 and 73-830Emporium Capwell Co. v. Community Org.

Dear Thurgood,

I am glad to join your opinion forthe Court in these cases.

Sincerely yours,

Mr. Justice Marshall

Copies to the Conference

CHAMBERS OF

ti 0Oultrturt 0.1ourt of flit ?ffriteb Abate

IlTaoltitmtott, Q. 2aptg

0JUSTICE POTTER STEWART

December 9, 1974

gisiqtrattt aloud of fire 'Anita OtattoA'iint3tan, P. zopkg

CHAMBERS OF

JUSTICE BYRON R. WHITE

January 20, 1975

Re: Nos. 73-696 & 73-830 - Emporium Capwell Co.v. Western Addition CommunityOrganization

Dear Thurgood:

Please join me.

Sincerely,

Mr. Justice Marshall

Copies to Conference

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIONLIBRARY"OrTONG,

Justice Dougla s

Justice Brenna:Justice Stewar-Justice WhiteJustice Blackmt

Justice PowellJustice Rehnqui

Writs of CertiorariUnited States Court

, ) F Appeals for the .Di`of Columbia

I AFT From: Marshall, J.

SUPREME COURT OF THE UNITED STATES lated: DFC 6 197

NI) 73-830 Recirculated:

rIre Emporium <

Petitiomq

73-696

Western AdditionOrganizaiJol,

National Labor i t i0iP4

Board, Peti ,oner73-830\\Tester') Additio) ommu nity

Organization et al.

[Decembel Ei74]

MR. JUSTICE MARSHALL delivered the opinion of theCourt.

This case presents the question whether, in light of thenational policy against racial discrimination in employ-ment, the National Labor Relations Act protects con-

certed activity by a group of minority employees to,bargain with their employer over issues of employmentdiscrimination, The National Labor Relations Boardheld that the employees could not circumvent theirelected representative to engage in such bargaining. TheCourt of Appeals for the District of Columbia Circuitreversed and remanded, holding that in certain circum-stances the activity would be protected. 485 F. 2d 917,Because of the importance of the issue. to the adminis-tration of the Act, we granted certiorari. 415 U. S. 913,.We now reverse,

/d, /3 /e(

2nd DRAFT

To: The Chief JusticeMr. Justice Douglas

Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice Blackmi.r.Mr. Justice PowellMr. Justice Rehnquist

From: Marshall, J.SUPREME COURT OF THE UNITED STATES

Circulated:

Nos. 73-696 AND 73-830 Racirculated:LICLU__:2

The Emporium Cap knell Co.,Petitioner,

73-696 v.Western Addition Community

Organization.

National Labor RelationsBoard, Petitioner,

73-830 v.

Western Addition CommunityOrganization et al.

On Writs of Certiorari tothe United States Courtof Appeals for the Dis-trict of Columbia Cir-cuit,

[December ----, 1974]

MR. JUSTICE MARSHALL delivered the opinion of theCourt.

This case presents the i.iestion whether, in light of thenational policy against racial discrimination in employ-ment, the National Labor Relations Act protects con-certed activity by a group of minority employees tobargain with their employer over isslis of employmentdiscriminatiou. Th:=: :79.tiw.ial Labor Relations Boardheir! that the employees could not circumvent theirelected representative to enga ge hi such bargaining. TheiThart of Appeals for the District of Columbia Circuit

,ersed and rema.nded, holding that in certain circurn-staipes ±e activicy be protected. 485 F. 2d 917,1-.;e,21us,.- o r he importanceimportavee of the issue Do the adminis-trator of the we p.r.:inte:i cerf.inrari: 415 U, 5, 913_We. m,,c_v Oz

ghtprtutt glintrt of Litt 'pater statedltittaitington, 20p4

CHAMBERS OF

JUSTICE HARRY A. BLACKMUN

December 17, 1974

0Re: No. 73-696 - Emporium Capwell Co. v. t*r-

Western Addition Community t%

nNo. 73-830 - NLRB v. Western Addition iCommunity Organization

Dear Thurgood:

Please join me.

Sincerely,

Mr. Justice Marshall

cc: The Conference

Sincerely,

Mr. Justice Marshall

lfp/ss

cc: The Conference

Atirrime Court of ffrt Itttita Oftdox

In"it4tottnt, P. cf. 20PgJanuary 2, 1975

No. 73-696 Emporium Capwell v. WesternAddition

No. 73-830 NLRB v. Western Addition

CHAMBERS OF

JUSTICE LEWIS E POWELL, JR.

Dear Thurgood:

Please join me.

Ouprtittt ajoitti of tilt lltrittb Atzdtosifin Lott, p. (4c. zupg

CHAMBERS OF

JUSTICE WILLIAM H. REHNQUIST

January 3, 1975

Re: Nos. 73-696 and 73-830 - Emporium Capwell v.Western Addition

Dear Thurgood:

Please join me.

Sincerely,

Mr. Justice Marshall

Copies to the Conference