“Prisoners of the Union”: Emporium Capwell and the Decline of Concerted Activity against Racial Discrimination

Authors

Andrew Hull

Abstract

This paper tracks the development of judicial understanding of labor unions’ status under Section 9 of the National Labor Relations Act as the “exclusive representative” of employees for the purposes of bargaining with the employer, focusing on the how the Supreme Court case Emporium Capwell v. Western Community Addition has led to a gradual restriction of the scope of protected concerted activity by workers suffering discrimination. This ossification reveals how rigid, overly theoretical understanding of the law that is divorced from practical contexts often leads to reinforcing racial disparities in a capitalist mode of production. I further argue Emporium Capwell provides a rich common ground for radical legal theories, including both Marxist and Realist-descended theories such as Critical Race Theory (CRT) and the Law & Political Economy (LPE) movement. LPE’s framework allows for CRT and Marxist theories to engage each other over the contradictions in post-war liberalism that Emporium Capwell laid bare. Specifically, CRT and Marxist analyses of Emporium Capwell can serve as a basis for introducing Cedric Robinson’s idea of “racial capitalism” in a legal context. Derrick Bell’s critique of liberal Warren Court-era civil rights discourse, when combined with Marxist critiques of labor unions in a capitalist mode of production, can show how non-realistic legal analysis shores up racial capitalism.

Recommended Citation

Andrew Hull, “Prisoners of the Union”: Emporium Capwell and the Decline of Concerted Activity against Racial Discrimination, 22 Hastings Race & Poverty L.J. 211 (2025).
Available at: https://repository.uclawsf.edu/hastings_race_poverty_law_journal/vol22/iss1/8