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“Business Unionism” versus “Responsible Unionism”: Common Law Confusion, the American State, and the Formation of Pre-New Deal Labor Policy
Published online by Cambridge University Press: 27 December 2018
Abstract
The emergence of the American Federation of Labor in the 1880s and its ideology of voluntarism or “business unionism” transformed the mainstream American labor movement. Voluntarism, however, had little impact on the formation of the pre-New Deal labor policy. I suggest that members of the progressive movement developed “responsible unionism” as an alternative to “business unionism” and that it was the progressives' alternative that shaped later developments in labor policy. (1) Progressive state and federal court judges relied on the principles of agency, a fiduciary term, to make unions competent contracting parties and enforce collective trade agreements. (2) Although the AFL had long lobbied for anti-injunction legislation sup ported by an underlying ideology of voluntarism, the progressive Republican-Democratic coalition that engineered passage of the Norris-LaGuardia Anti-Injunction Act of 1932 based the legislation on their notion of “responsible unionism.” These progressives interwove the principles of agency into the act. As a result, rather than withdrawing the American state from labor-management relations, the act caused unions to begin to lose their status as private, voluntary associations, thus creating the foundation for the construction of the statist regulatory apparatus, the National Labor Relations Board, during the New Deal.
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References
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107 While Loewe v. Lawlor had sustained an injunction against an illegal restraint of trade, the Taft Court sustained an injunction against legal restraints of trade. See Loewe v. Lawlor, 208 US. 274 (1908).Google Scholar
108 The Bedford case represented the only important labor case for which Taft did not draft the majority opinion. See Kutler, “Judicial Philosophy of Chief Justice Taft,” at 118 (cited in note 96).Google Scholar
109 Bedford, 274 U.S. at 48–49.Google Scholar
110 Id at 58.Google Scholar
111 “Comments on the decision of the United States Supreme Court in the case of the United Mine Workers of America vs. the Coronado Coal Company,” n.d., AFL Papers, University of Wisconsin, Madison (“AFL Papers”).Google Scholar
112 Sturges, , 33 Yale L.J. at 405 (cited in note 66); United Mine Workers v. Coronado Coal Co., 259 U.S at 390; and “Notes,” 38 Colum. L. Rev. 459 (1938).Google Scholar
113 Samuel Gompers to Executive Council, American Federation of Labor, 8 Feb. 1922, AFL Papers.Google Scholar
114 Edwin W. Witte to Roger N. Baldwin, December 24, 1931, Edwin W. Witte Papers, University of Wisconsin, Madison (“Witte Papers”).Google Scholar
115 Gompers to Donald R. Richberg, 13 Sept. 1923, Donald R. Richberg Papers, Chicago Historical Society (“Richberg Papers”). Gompers mentioned Ralston's and Sayre's help and attached memorandums entitled, “An Act Concerning the Granting of Injunctions” and “An Act Concerning Labor Organizations”.Google Scholar
116 Donald, R. Richberg to George, W. Norris, , May 18, 1928, Norris Papers, Library of Congress; Cornelius Cochrane, “Public Opinion Flays Judicial Approval of ‘Yellow Dog’ Contracts,” 20 Am. Lab. Legis. Rev. 181–84 (1930).Google Scholar
117 Edwin E. Witte, “An Act to Define, Regulate, and Limit the Equity Jurisdiction of the Federal Courts,” 22 Dec. 1928, Witte Papers.Google Scholar
118 Gompers, Samuel, “The Charter of Industrial Freedom,” 21 Am. Federationist 971–72 (1914); William H. Taft, The Anti-mart Act and the Supreme Court 98–99 (New York: Harper & Bros., 1914); and Mason, “The Labor Clauses of the Clayton Act,” 18 Am. Pol. Sci. Rev. 494 (1924); and Taft to Judge Jeremiah Smith, 24 Dec. 1914, Taft Papers (cited in note 53).Google Scholar
119 See Cong. Rec., 53d Cong., 2d sess., 1914, 51, pt. 14: 13965.Google Scholar
120 See Ashby, , The Spearless Leader 78 (cited in note 44); Sarasohn, The Party of Reform 169 (cited in note 51); and Mason, Organized Labor and the Law 180 (cited in note 40). In the following decisions, the Taft Court undermined the labor relations provisions in the Clayton Act and held unions and union members fully accountable for violating antitrust in interstate commerce. Duplex Co. v. Deering, 254 U.S. 443 (1921); America Steel Foundries v. Tri-City Central Trade Council, 257 US. 184 ((1921); Truax v. Corrigan, 257 US. 312 (1921); Bedford, 274 U.S. 37 (1927).Google Scholar
121 Memorandum, n.d., Norris Papers.Google Scholar
122 Duplex v. Deering, 254 U.S. at 469.Google Scholar
123 John J. Blaine to Witte, 13 Feb. 1928; Witte to Blaine, 6 March 1928, Witte Papers.Google Scholar
124 Memorandum entitled “Arguments Supporting the Draft of a Bill Limiting the Power of Courts to Issue Labor Injunctions,” Jan. 1931, at h., Witte Papers (“Memorandum, Jan. 1931, Witte Papers”).Google Scholar
125 The Shipstead bill (S.1482) was introduced on 12 Dec. 1927. (It became S.2497 in the 71st Congress). See Kuczynski, Jurgen & Steinfield, Marguerite, “Wages in Manufacturing Industries, 1899–1927,” 35 Am. Federationist 834–35 (1928). Also see “Injunction before the Senate,” 35 Am Federationist 145 (1928); and Lowitt, Norris 520 (cited in note 40).Google Scholar
126 See Frankfurter, Felix & Greene, Nathan, “Congressional Power over the Labor Injunction,” 31 Colum. L. Rev. 386 (1931); Zucker, Norris 104 (cited in note 50); Memorandum, 11 Feb. 1928, AFL Papers; “Injunction Defenders,” 10 Law & Lab. 51 (1928); “The Labor Injunction Issue in Organized Labor's Own Nutshell,” 10 Law & Lab. 76 (1928).CrossRefGoogle Scholar
127 Memorandum entitled “Does the Thirteenth Amendment to the Constitution Amend the Fifth? Did Man Become Free?” by Andrew Furuseth, n.d.; and Joseph O. Carson to Norris, 23 Dec 1931, Norris Papers. The union leaders, however, had no reason to believe that the Taft Court would support substantive alterations in labor law. As one of his last acts as president, Taft vetoed the Hughes-Hamill rider attached to the 1913 Sundry Civil Appropriations bill which froze all Justice Department funds used for prosecuting unions or farm organizations under the Sherman Act. Taft called this backdoor exemption, making unions immune from the labor injunction, “class legislation of the most vicious sort.” Quoted from Arthur S. Link, 3 Wilson, the New Freedom 266 (Princeton, N.J.: Princeton University Press, 1956).Google Scholar
128 John J. Blaine to Witte, 13 Feb. 1928, Witte Papers. Sayre, a progressive legal scholar, also argued that “if labor believes the Shipstead bill will save all, [it] will be bitterly disappointed.”“Damage suits can bite deeper than injunctions.” Francis B. Sayre, “Labor and the Courts,” 39 Yale L.J. 683 (1930); and Blaine to Witte, 13 Feb. 1928, Witte Papers. Witte to Blaine, 6 March 1928, Witte Papers; and Witte to Blaine, 3 Nov. 1928, 14, 19, 28 July 1928, Witte Papers.Google Scholar
129 Frankfurter to Roger N. Baldwin, 9 Dec. 1931, Norris Papers. Sayre also queried if the Shipstead bill “unduly magnified [the labor injunction] as an injustice.” Sayre, 39 Yale L.J. 683. Also see Forbath, 102 Harv. L. Rev. at 1215 (cited in note 1), who argues that these progressive legislators and lawyers accepted the AFL's constitutional critiques about the labor injunction which relied on the First and Thirteenth amendments of the Constitution.Google Scholar
130 In May 1928, Norris asked progressive legal experts, who shared his views on anti-injunction proposals, to draft the first Norris substitute bill. Sayre, Witte, and Felix Frankfurter, and labor lawyers Herman Oliphant, who represented the Rapid Transit workers in the Interborough Rapid Transit Co., and Donald D. Richberg, counsel for the Four Railroad Brotherhoods, drafted this bill. At the time, Witte was the Chief Wisconsin Legislative Reference Librarian, Oliphant taught law at Columbia, Sayre and Frankfurter taught law at Harvard, and Richberg served as counsel for numerous progressive causes in addition to the Four Brotherhoods and the AFL. In drafting legislation, Richberg wrote to Norris that he was representing the public's interest rather than organized labor's interest. Drafting the first Norris substitute bill in 1928, the progressive drafting committee also reiterated the complaints of Norris, Blaine, and Walsh, against the AFL's proposals to restrict “government by injunction.” Referring to the Shipstead bill, Sayre, Witte, Frankfurter, Oliphant, and Richberg wrote that “the solution of this problem cannot be found in any short, sweeping prohibition.” Memorandum entitled an “Outline of Explanation of Bill Drafted to Limit and Define the Jurisdiction of the Federal Courts in Labor Cases,” n.d., Norris Papers (“‘Outline of Explanation’”).Google Scholar
131 Frankfurter Memorandum, reel 95, n.d., Felix Frankfurter Papers, Manuscript Division, Reference Department, Library of Congress (microfilm, Library of Congress) (“Frankfurter Papers”).Google Scholar
132 The Norris substitute bill echoed a definition of liberty of contract that had appeared in American Steel Foundries v. Tri-City Central Trade Council, 257 US. 184 (1921). Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar
133 “Outline of Explanation,” Norris Papers.Google Scholar
134 Quoted from Memorandum, Jan. 1931, at a., Witte Papers (cited in note 124).Google Scholar
135 Ruth O'Brien, “State-Building and Political Parties: The Creation of American Industrial Relations Policy in the 1920s” (Ph.d diss., University of California, Los Angeles, 1991). For other sources noting the importance of the railroad labor legislation in the 1920s on labor law, see Orren, Belated Feudalism 161–208 (cited in note 6); Tomlins, The State and the Unions 232, 234 (cited in note 2); and Howell Harris, “The Snares of Liberalism? Politicians, Bureaucrats, and the Shaping of Federal Labor Relations Policy in the United States, ca, 1915–1917,” in Steven Tolliday & Jonathan Zeitlin, eds., Shop Floor Bargaining and the State: Historical and Comparative Perspectives 160–62 (New York: Cambridge University Press, 1985).Google Scholar
136 Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar
137 Untitled memorandum on the Norris bill, n.d., reel 95, Frankfurter Papers.Google Scholar
138 See Christ, Jay Finley, “The Federal Anti-Injunction Bill,” 16 Ill. L. Rev. 535–36 (1932).Google Scholar
139 Frankfurter, & Greene, , 31 Colum. L. Rev. at 409 (cited in note 126).Google Scholar
140 Quoted from Memorandum, Jan. 1931, at h., Witte Papers.Google Scholar
141 Quoted from “Outline of Explanation,” Norris Papers (cited in note 130).Google Scholar
142 Memorandum, January 1931, at h., Witte Papers.Google Scholar
143 Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar
144 Quoted from “Outline of Explanation,” Norris Papers.Google Scholar
145 Memorandum, Jan. 1931, at k., Witte Papers (cited in note 124).Google Scholar
146 Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar
147 Id.Google Scholar
148 Id.Google Scholar
149 See, e.g., United Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922); and Coronado Coal Co. v. United Mine Workers, 268 US. 295 (1925).Google Scholar
150 “Outline of Explanation,” Norris Papers (cited in note 30).Google Scholar
151 Memorandum, Jan. 1931, at k., Wine Papers.Google Scholar
152 “Federation's Injunction Proposal,” 36 Am. Federationist 1301 (1929); and American Federation of Labor, Convention, Proceedings 352 (929).Google Scholar
153 The conflict between the AFL union leaders and the progressive legislative authors on and off the Senate Judiciary Committee went beyond the scope of these specific labor relations provisions. Each group accused the other group of misunderstanding the general equity abuse issue. Green gave a speech at the Association of American Law Schools, 29 Dec. 1929, AFL Papers; and Green to Witte, 11 Feb. 1930, Witte Papers.Google Scholar
154 On 26 November 1929, the AFL sent Norris a copy of his bill marked with revisions penned by Donald D. Richberg. Richberg drafted the AFL revisions in “Memorandum Concerning Amendments to Anti-Injunction Bill Suggested by the American Federation of Labor,” Norris to Witte, 6 March 1930, Witte Papers. Norris responded by sending these revisions to the original legislative authors of the Norris substitute bill for further scrutiny. Frankfurter to Norris, 28 Jan. 1930, Norris Papers. Frankfurter enclosed a memorandum on their opinion about the AFL amendments. The progressive labor legal scholars Witte, Oliphant, Sayre, and Frankfurter, in addition to the labor lawyer, Richberg, then redrafted the first Norris substitute bill. Frankfurter, Witte, and Oliphant wrote a long memorandum, “Observations on Amendments Proposed in the AFL to the Injunction Bill Drafted by the Sub-committee of the Senate Committee on the Judiciary,” n.d., Norris Papers, addressing all the implications and consequences that would result from the AFL's suggested changes. In December, these authors, in addition to Donald Richberg and Sayre, met in New Orleans to draft new legislation. The meeting was set to discuss the differences between the Norris substitute bill from the 70th Congress and the AFL revisions. Witte to Frankfurter, 6 Dec. 1929, Witte Papers. Norris was kept abreast of the legislative authors work in New Orleans. Frankfurter to Norris, 28 Jan. 1929, Norris Papers.Google Scholar
155 Green to Witte, 9 July 1928; Frankfurter to Oliphant, 19 June 1928; Norris to Witte, 11 June 1928, Witte Papers; Witte to Blaine, 3 Nov. 1928; and Frankfurter to Witte, 15 June 1928; Witte to Blaine, 3 Nov. 1928, Witte Papers; “Critical Analysis by Special AFL Committee S.1482,” Box 198; “Proposed Anti-Injunction Legislation” memorandum found in Norris Papers.Google Scholar
156 In 1928, no hearings were held for the Norris substitute bill. Congress recessed in preparation for the upcoming presidential election before hearings could be scheduled. As a result, in 1929, Norris, Blaine, and Walsh reintroduced the Norris substitute bill in the first session of the 70th Congress. Senate Subcommittee of the Judiciary, “Defining and Limiting the Jurisdiction of the Courts Sitting in Equity,” Statement by Norris in the Senate Hearings, April 28, 1930, 72nd Cong., 2d sess., 1930, 22.Google Scholar
157 By this time, the composition of the Judiciary Committee itself had changed. The most obstructive old guard Republicans lost their positions on the committee: Charles S. Deneen and Frederick Gillett lost their seats in the Senate after the election of 1930; and Frederick Steiwer was appointed to serve on another committee. Norris explained that there had been “quite a change in the membership of the Senate Judiciary Committee. In addition to this the membership of the two parties was so close that the Democrats were entitled to a larger representation than they formerly had on this Committee. The new Democratic members were favorable to the anti-injunction bill.” Secretary John P. Robertson, 4 Nov. 1932, writing about Norris in the Norris Papers. Also see Frankfurter & Greene, 31 Colum L. Rev. at 385 (cited in note 126). The New Republic stated that “probably the most important bill now before Congress has nothing to do with the existing depression.” See “Anti-Injunction Bill,”New Republic, 2 March 1932, p. 55.Google Scholar
158 When the Judiciary Committee reconsidered the Norris substitute bill, they received impressive testimony from progressives from all different professions. Alexander Fleisher to Witte, 18 Dec. 1931, Witte Papers.Google Scholar
159 Cong. Rec., 72d Cong., 1st sess., 1932, 75, pt. 5: 5019; and Witte to John J. Blaine, 16 March 1932, Witte Papers.Google Scholar
160 Unlike Norris, LaGuardia had not spent much time on preparing anti-injunction legislation. Rather, he had been solicited by Norris and the anti-injunction lobby because of his credentials as a strong progressive Republican. Lowitt, Norris 524–26 (cited in note 40). See Cong. Rec., 72d Cong., 1st sess., 1932, 75, pt. 5: 5511–12, for the House vote.Google Scholar