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#700 - Freedom of Association--Part 4, 07-Jun-2000

by Peter Kellman*

The goals of the 1830s labor movement -- the ten-hour day and
public education -- focused on democracy. Labor people argued
that, to build a democracy, they had to be educated, and to be
educated they needed time to go to school. So they fought for the
ten-hour day and free public education not as benefits in and of
themselves but as conditions necessary to bring about a
republican form of government. The labor movement of the 1830s
had picked up the ball hit by the New Hampshire legislature in
1816, a ball declared foul by the U.S. Supreme Court in the
Dartmouth case of 1819. (See REHW #699.) Private education, the
Governor of New Hampshire had said in promoting legislation to
make Dartmouth College a public university, "emanated from
royalty and contained principles... hostile to the spirit and
genius of free government," and in support of the New Hampshire
legislature the state supreme court stated "...because it is a
matter of too great moment, too intimately connected with the
public welfare and prosperity, to be thus entrusted in the hands
of a few. The education of the rising generation is a matter of
the highest public concerns, and is worthy of the best attention
of every legislature."

Democracy Day

If the thinking of the 1830s labor movement were applied today,
we would link hours of work to the present lack of democracy and
call for a work week composed of four eight-hour days and a fifth
day to participate in creating a democracy -- "Democracy Day."
Because we understand that there is more to democracy than just
voting every few years, we need to have the time to participate
in the functioning of government. So one day a week would be set
aside, in the language of the 1830s, for the COMMON people to
study and participate in the functioning of a democratic
government -- one day every week to sit on local boards and
participate in public meetings and seminars. The corporate lobby
would have a heart attack if thousands of working class people
had the time to actually participate in the legislative process
-- time to, as the union people said, "perfect our organization."

While the working class, the common people, has been struggling
to perfect our organization, the propertied class has found a
vehicle to perfect its organization. Its vehicle of choice: the
corporation.

Corporations

The corporations chartered just after the Revolution were few in
number and their activities were narrowly defined by the
legislatures that chartered them. For example, a corporation
chartered to build a turnpike couldn't make textiles. A
corporation chartered to make textiles couldn't build a turnpike;
nor could a turnpike or textile corporation own other companies.
Furthermore, the stockholders of corporations were not insulated
from the liabilities of the corporation the way managers and
stockholders are today. That is, the stockholders of a
corporation chartered in 1800 were individually responsible for
the corporation's debts and liable for its acts. Translated to
today's world this would mean that corporate managers would be
personally responsible for corporate violations of law, and the
stockholders would pay the debts of a corporation that declared
bankruptcy. If an individual today violates a serious labor or
environmental law they go to jail. But how do you put a
corporation in jail? In 1800 the charter would be revoked. There
was no corporate shield then. Now THAT is corporate responsibili-
ty!

In 1800 the rich held their property primarily as individuals who
owned so many acres of land, slaves or businesses. By the end of
the Civil War, the propertied class had shifted its way of
exercising power from individual to corporate. The railroad
corporations cleared the economic, political and judicial way for
oil, steel, banking and the other major corporate concerns that
followed. By 1876 the railroad corporations were literally
running the country. In the presidential election that year, the
outcome was disputed. The decision was left to a special
commission composed of five Supreme Court justices and 10
Congressmen to determine if the Democrat, Samuel J. Tilden, or
the Republican, Rutherford B. Hayes, would become President of
the United States. Labor historian Philip Foner describes the
outcome: "The actual determination was made by Thomas A. Scott,
president of the Pennsylvania Railroad, who, in return for
assurances of support for a Texas Pacific Railroad, obtained the
votes of the southern Congressmen for Hayes. It is hardly an
accident that on March 2, 1877, when Hayes received the telegram
confirming his election, he was en route to Washington in Tom
Scott's own luxurious private car."[1]

For our purposes it matters little that the election was bought
by a railroad CEO. What matters is the impact that the Hayes
administration had on the lives of freed slaves, union labor and
the generations of Americans that followed. In fact, much of the
present-day status of African Americans and the labor movement
was determined by two actions that Hayes took as president. First
he ended reconstruction by pulling the last of the federal troops
from the South who were there to insure equal rights and a new
start for freed slaves. Second he used federal troops to end the
great labor uprising of 1877 in which over 100 strikers were
killed. Jeremy Brecher in his book STRIKE! begins the story: "In
the centers of many American cities are positioned huge armories,
grim nineteenth-century edifices of brick and stone. They are
fortresses, complete with massive walls and loopholes for guns.
You may have wondered why they are there, but it never occurred
to you that they were built to protect America not against
invasion from abroad but against popular revolt at home. Their
erection was a monument to the Great Upheaval of 1877."[2]

In July of 1877, in the midst of a depression, railroad workers
struck in response to very unsafe working conditions and repeated
pay cuts. Their strike closed the most powerful industry in the
country. As the strike spread along the rail lines, workers in
other industries joined and the rail strike became a general
strike in a dozen major cities. In April of 1877 President Hayes
pulled the last of the federal troops from the South and in July
sent them into battle against labor. Then in the fall federal
troops fought the Sioux. How different a country it would be if
the federal government of 1877 had been in the hands of the
people instead of the CEO of a railroad corporation. Imagine what
the country would be like today if we had shop stewards instead
of lawyers on the Supreme Court; if federal troops had been used
to PROTECT labor, freed slaves and Native Americans in 1877.
After the Great Upheaval of 1877 was put down by federal troops,
labor resurfaced as an important force with the rise of the
Knights of Labor, whose membership peaked in 1886 at about one
million members. In place of corporations and the wage labor
system, the Knights advocated "co-operative institutions such as
will tend to supersede the wage system, by the introduction of
[a] co-operative industrial system." The Knights fought for a
shortening of hours of labor by a general refusal to work more
than eight hours. They advocated the creation of producer,
consumer and distributive cooperatives, the prohibition of child
labor, equal pay for equal work between the sexes and races,
universal suffrage and the eight-hour day. The Knights opposed
the concentration of wealth and power in the hands of a few.

African American workers and communities played an important role
in the Knights of Labor. When workers in Richmond, Virginia,
hosted the Order's 1886 General Assembly, the racist southern
press did not miss the opportunity to castigate the Knights'
interracial delegations, pointing, with particular horror, to the
mixing in public of white and black men and women... But the
organization stood its ground on the race question. The city's
African-American workers responded by treating visiting Knights
to a huge labor parade.[3] The Knights believed the working class
should exercise power through the ballot and the boycott. They
urged that labor disputes be settled by arbitration. Employers
not willing to settle through arbitration were subjected to
massive community boycotts. The American Federation of Labor
(AFL) was created by trade unions that split from the Knights in
1886. Soon after, the AFL became the union of unions that it is
today.

Intangible Property

Labor's success under the Knights and early AFL was due in part
to their use of the boycott. In a boycott people urge other
people not to do something like shop at a store, work, or buy a
product. A boycott is an example of free speech. But when the
boycott began hurting the propertied class, the courts, in their
role assigned to them by the framers of the Constitution,
responded.

If a striker damages physical corporate property the legal remedy
is clear, but in a boycott, strike or picket line no physical
property is touched. Labor historian Charles Scontras states: "It
was perfectly legal for an individual to strike, picket, or
boycott, and the employers had no legal recourse for injury
suffered from such activities of an individual. It was necessary,
therefore, to show that union actions such as strikes, boycotts,
and picketing were illegal activities. To achieve this end,
courts began to revive the old common law of conspiracy. While
the old conspiracy doctrine held that conspiracy was a crime
because it threatened the public, the new interpretation of
conspiracy held that it was a civil offense because it threatened
irreparable damage to intangible property. Thus, it was no longer
necessary for employers to show that irreparable damage to
tangible property would result if such activities took place, but
only to show that irreparable damage would occur against
intangible property rights to do business and realize a
profit."[4]

Future corporate profits came under the definition of intangible
property. But what about wages? When was the last time you heard
of an injunction being issued against an employer for refusing to
negotiate in good faith?[5] Doesn't that activity interfere with
a worker's future earnings? How is that any different from
interfering with the future earnings of a business? Have you ever
heard of a CEO being put in jail to prevent him and his managers
from taking actions that might hurt the future earnings of
workers employed by his company? Historically INJUNCTIVE law has
been utilized against labor by employers with the help of
more-than-willing judges.

The Injunction

John Mitchell, president of the Mine Workers Union, said in 1903:
"No weapon has been used with such disastrous effects against
trade unions as has the injunction."[6]

Court activity is usually based on some action that has already
taken place, and the court rules whether the activity violated an
existing law. With an injunction the court forbids, or ENJOINS, a
FUTURE activity from taking place. (Between 1880 and 1931, judges
issued 1800 injunctions against labor strikes.) To enforce the
injunction, the judge can levy fines and send people to jail. If
you violate an injunction, the judge will find you in contempt of
court. That is, the judge finds that you violated not a law
written by a legislature, but a law created by the judge. What we
have here is the court deciding that the liberty of workers to
engage in collective activity such as boycotting, striking or
picketing to promote their interests is a lesser liberty than the
liberty of an employer to engage in business. This means, for
example, that the court has the power to put people in jail who
ADVOCATE that people should not buy a product.

[To be continued.]

=====

*Peter Kellman works for the Program on Corporations, Law and
Democracy (POCLAD). For information on POCLAD, E-mail
people@poclad.org; or www.poclad.org; or phone: (508) 398-1145;
or mail: P.O. Box 246, So. Yarmouth, MA 02664-0246.

[1] Philip S. Foner, THE GREAT LABOR UPRISING OF 1877 (N.Y.:
Pathfinder, 1977).

[2] Jeremy Brecher, STRIKE! (Boston: South End Press, 1980), pg.
1.

[3] Bruce Levine and others, WHO BUILT AMERICA Vol. II (N.Y.:
Pantheon, 1989), pg. 116; the Knights did not welcome Chinese
immigrants into the fold and championed the passage of the
Chinese Exclusion Act of 1882. That Act and the agitation
surrounding it did much to fan the flames of discrimination
against the Chinese which led to the torching of "China Towns"
and the deaths of Chinese people.

[4] Charles A. Scontras, SAMUEL GOMPERS AND THE AMERICAN
FEDERATION OF LABOR VS. MAINE'S CONGRESSMAN CHARLES E.
LITTLEFIELD, 1900-1913 (Orono, Maine: Bureau of Labor Education,
1998), pg. 8.

[5] The National Labor Relations Board defines good-faith
bargaining to exist as long as each side is willing to sit down
at the bargaining table and discuss all issues. What positions a
side takes does not enter into the definition. So if the company
sticks with a proposal to lower wages in a time of record
profits, the company will be in compliance with the Board's
definition of good-faith bargaining, so long as the company does
not refuse to discuss wages.

[6] John Mitchell, ORGANIZED LABOR (Philadelphia: American Book
and Bible House, 1903), pg. 324.

Descriptor terms: labor; constitutional law; human rights;
freedom of association; boycotts; strikes; injunctions;
contracts clause; corporations; knights of labor; intangible
property;