Title VII and NLRA: Protection of Extra-Union Opposition to Employment Discrimination

Title VII of the 1964 Civil Rights Act guarantees freedom from employment discrimination based on race, religion, sex, or national origin and establishes remedial procedures for aggrieved employees. A nondiscrimination clause in a collective bargaining agreement may also protect employees from discriminatory treatment; typically, the contract will also contain grievance machinery through which the employee, with the aid of his union, can present his complaint. The question remains: When both title VII and contract grievance procedures are available, can an individual employee or a group of employees take direct action against an allegedly discriminatory employer independently of the union and in lieu of the title VII procedures? The decision of the Court of Appeals for the District of Columbia Circuit in Western Addition Community Organization v. NLRB (The Emporium) faced this issue in determining whether a group of black employees could, without the sanction of their union and while a grievance under the nondiscrimination clause was pending, picket their employer during off-duty hours to publicize their demand for an end to allegedly discriminatory employment practices. The case arose on review of a National Labor Relations Board (NLRB) order finding that the employer had not violated section 8(a)(l) of the National Labor Relations Act (NLRA) by discharging the picketing employees.