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The Constitution, the Labor Union, and “Governmental Action,” 70 Yale Law Journal 345 (1961)


Lee Oliphant could not join the Brotherhood of Locomotive Firemen and Enginemen. Yet under the Railway Labor Act this union represented him in negotiations with his employer. The Brotherhood took to membership white locomotive-firemen; by constitutional provision it excluded all others. Oliphant was by occupation a locomotive-fireman on the railroad; by race, he was a Negro.

Undeterred by the shibboleth that the law cannot compel the spirit of brotherhood, Oliphant asked a federal district court to order his admission into the union. He argued that the due process clause of the fifth amendment to the United States Constitution requires no less.

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