This Day in Labor History: March 1, 1932, Norris-LaGuardia Act passed the Senate, outlawing many of employers' worst anti-union practices. Let's talk about this critical moment in American labor history and how we are returning to these dark days today.
In the Lochner era, a misnomer that uses a single court case to represent a doctrine of work that had already existed for more than a half-century before that 1905 decision, there was a widespread belief in the sanctity of the contract between employers and workers.
n other words, if a worker agreed to work on a job, it was inherently implied that said worker agreed to the conditions of work the employer set. If the employer created conditions where the worker did not want to sell his or her labor, that worker could quit.
Of course, this completely ignored power dynamics. The idea that a single worker in the Gilded Age held equal power as the employer was beyond absurd. But employers and politicians held on to this ideology with great tenacity.
After the hideously awful 1905 Lochner decision that invalidated a maximum hour law based on the sanctity of contract, future decisions slowly chipped away at this terrible doctrine.
But the overall framework held strong well into the 1920s. Courts routinely ruled that unions were unlawful combinations and that strikers were illegal conspiracies that halted interstate commerce.
Of course the courts allowed monopolies to do whatever they wanted in ways that actually were unlawful combinations and illegal conspiracies to limit interstate commerce except in ways that helped corporate bottom lines. But unions were officially oppressed by the courts.
One of the ways that employers took advantage of this ideology was the so-called “yellow-dog contract.” This made it a condition of employment that a worker not be a union member.
This was an outrage for both workers and for the Populist movements that had briefly taken power in many states during the late 19th and early 20th century and outlawed them.
New York was the first, in 1887. Congress did the same nationally, at least for railroad workers, with the Erdman Act of 1898. The Supreme Court routinely struck against these laws. Like today, the Court just throws out laws that help workers.
In 1915, the Supreme Court ruled 6-3 in Coppage v. Kansas that a law banning the yellow-dog contract was unconstitutional. In 1917, the Supreme Court, in Hitchman Coal and Coke Co. v. Mitchell, expanded upon that, ruling that yellow-dog contracts were enforceable by law.
This disgusted not only labor activists but a lot of Progressives, who believed that unions should at least be legal, even if they did not believe in the closed shop or other elements of labor solidarity.
After Hitchman and in the wake of the Red Scare shortly to follow, employers increased their use of the yellow-dog contracts and their political opposition grew.
Moreover, aggressive uses of injunctions, also increased by Hitchman, led to courts effectively outlawing the United Mine Workers in West Virginia.
By the late 1920s, the movement against the yellow-dog contract had grown. In 1930, the Senate rejected Hoover’s nomination of John Parker to the Supreme Court because he had upheld yellow-dog contracts as a judge.
As the Great Depression deepened and the overwhelming demands of workers for dignity became impossible to ignore, the momentum for labor law reform became hard to stop.
This wasn’t per se because of a great rush to support unions, but rather because the yellow-dog seemed an anachronism of the violent anti-union days that the middle-class of the 1920s, much more interested in soft anti-union power such as company unionism, found embarrassing.
Behind this reform was two of the great progressive Republicans of the period, Nebraska senator George Norris and New York congressman Fiorello LaGuardia.
The courts had also shifted in recent years, with recent decisions using language, including from William Howard Taft, that noted the contract ideology that dominated the workplace made no sense when government and business worked together to suppress unions.
Said Harvard labor economist Carroll Daughtery in the Harvard Business Review yellow-dog contracts were “among the greatest strongholds of individualism” in an America where the economic reality made laissez-faire individualism “outmoded and outworn.”
The final bill outlawed the yellow-dog contract, established the principle that unions are free to form without employer interference (although it had no real enforcement mechanism), and prevented federal courts from issuing injunctions in nonviolent labor strikes
Organized labor was somewhat ambivalent about Norris-LaGuardia because it undermined the voluntary nature of unionism that had been dear to craft unionists since the 19th century. The AFL was still a 19th century organization with old-timey values.
American Federation of Labor-affiliated unions saw themselves as private, volunteer organizations outside of government regulation. Norris-LaGuardia bean to change that in ways that would become much stronger in a few years.
In 1932, AFL union leaders faced a rank and file revolt over unemployment insurance that the AFL finally came around to endorsing even a program that would directly help its members because it reeked of government involvement with unions.
The AFL did ultimately support Norris-LaGuardia, even though it wanted greater protection from injunctions than the bill provided. AFL head William Green testified for the need to eliminate the yellow-dog. Business of course opposed the bill.
The Norris-LaGuardia Act was a law passed at a time when the federal government was still in a nascent period of reform and when the discomfort with much government interference in the economy was still strongly felt in both parties.
It would take much, much more, including strikes, the murder of workers, and groundbreaking labor law within a new conception of the state, to create real rights for workers in the United States.
Norris-LaGuardia only applied to private sector workers. Government workers, especially teachers, were forced to sign yellow dog contracts into the 1960s and it was only when the government opened up the public sector to organizing that this finally ended.
Much of the anti-injunction power of the bill was regained by employers with the passage of the Taft-Hartley Act in 1947. And of course, employers can use the injunction as a weapon against unions today.
Now, I know that Norris-LaGuardia is not as sexy as Homestead or Haymarket or the IWW. But it's more important to understanding our labor history than any of these things. And that's because we are rapidly returning to a pre-Norris-LaGuardia era.
Janus v. AFSCME, which is about to turn the entire public sector right to work is only the latest in what has been and what will continue to be a long, long corporate war against unions. Business wants to bring back the Lochner Era. And they might well do it.
The reality is that the 5 conservative justices on the Supreme Court are total anti-union hacks. Anthony Kennedy basically admitted as such in oral arguments this week in Janus. He just hates unions and therefore he will rule against them.
Every single Trump-appointed judge to SCOTUS or the lower courts will rule in this way. Good chance they take over majorities on some appeals courts, especially if there is a 2nd term.
Moreover, like most everything else with Trump, it's just bog-standard Republican ideology. There's no difference between Jeb Bush, Donald Trump, or Calvin Coolidge.
If a case wound its way through the courts that challenged the constitutionality of Norris-LaGuardia, there is a very real chance the 5 hacks on the Court would rule in favor it. That is what we are facing and that's why we have to play smart politics.
This is why I was so furious, and remain so, by arguments on the left that telling people to vote for Hillary because of the Supreme Court was "blackmail." The Supreme Court seat is literally life or death for people.
Any public unionist who couldn't vote for Hillary literally sealed the death warrant for their own union.
And continued Republican dominance of the Supreme Court will lead to the return of the yellow-dog contract.
No battle is ever over. Not labor rights, not the right of women to vote, not the civil rights movement. None. The forces to overturn all of this are very powerful and active. We have to be aware of this and act on it at all times.
There are no victories that end the war for justice. There are only victories in the battles. That's why Norris-LaGuardia is so important for us today. It was a victory. And we may well lose it in coming decades.
Most of these labor history tweet threads are based on my old labor history posts I've published at @lefarkins. Tomorrow is a new one, on the Steel Workers Organizing Committee forcing US Steel into a contract. I hope to tweet it, but am flying to Mexico so don't know if I can.
