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#701 - Freedom of Asssociation--Final Part, 14-Jun-2000

[This concludes our brief history of labor in the U.S. What is
the connection to the environmental movement? Labor is on the
move once again and, as part of that impetus, is re-examining its
history to plan for the future. Given the overwhelming evidence
of continuing environmental deterioration, would it not be a good
idea for the environmental movement to be asking itself, "What
has gone wrong?" The answer to that question can only be found by
examining history.--P.M.]

by Peter Kellman*

Labor Crushed

In the 1920s, big business crushed the labor movement. The
corporate managers of that period wanted to put in place "The
American Plan," the corporation's idea of a social vision for
workers. The American Plan called for the open shop, company-run
welfare institutions, company-run social institutions and
company-controlled local governments. To make the American Plan
work, the unions had to be destroyed. Industry after industry
called for huge reductions in wages and the unions were forced to
strike. Using "government by injunction," the strikes were
crushed. Meanwhile the Attorney General was rounding up,
detaining and extraditing foreign-born union activists. Sacco and
Vanzetti were framed, tried and executed, and anyone who dared
challenge the power of the corporate elites was tried and
convicted in the newspapers and then by the courts. However, the
harshest treatment was handed out to African Americans; for
example in the four years, 1918-1921, 28 were publicly burned
alive and in 1932, 24 were lynched. These are not numbers we are
talking about here these are human beings.

Some historians refer to this period as the "Little Red Scare,"
but there was nothing little about it. Hundreds of union activist
were deported, killed and jailed, and tens of thousands were
blacklisted. By 1933 union membership was down to 5.2 % of the
civilian labor force.

Labor Comes Back

In all previous depressions in the U.S., labor union membership
had declined, but as the Great Depression deepened, labor started
to come back as unorganized workers knocked on the union door in
unprecedented numbers. Workers who had been suffering in silence
for a decade were once again on the move.

Norris-LaGuardia and the National Labor Relations Act

As we have seen, between 1901 through 1928, federal courts issued
118 labor injunctions of which 70 were granted on the basis of
employer affidavits without labor even having the opportunity to
be heard.[1] By 1932 the country was tired of "government by
injunction" and the Republican Congress passed the Norris-La
Guardia Anti-Injunction Act which was signed by Republican
President Hoover. This Anti-Injunction Act outlawed the "yellow
dog" contract (a condition of employment under which a worker is
automatically fired for joining a union) and stated in Section 1
that, "No court of the United States... shall have jurisdiction
to issue restraining or temporary or permanent injunctions in a
case involving or growing out of a labor dispute, except in a
strict conformity with the provisions of this Act." In Section 2
of Norris-LaGuardia, Congress described the existing relationship
between labor and the owners of property in the United States:
"Whereas under prevailing economic conditions, developed with the
aid of governmental authority for owners of property to organize
in the corporate and other forms of ownership association, the
individual unorganized worker is commonly helpless to exercise
actual liberty of contract and to protect his freedom of labor,
and thereby to obtain acceptable terms and conditions of

Congress then went on to lay out the solution: "...wherefore,
though he should be free to decline to associate with his
fellows, it is necessary that he have full freedom of
association, self-organization, and designation of
representatives of his own choosing, to negotiate the terms and
conditions of his employment, and that he shall be free from the
interference, restraint, or coercion of employers of labor, or
their agents, in the designation of such representatives or in
self-organization or in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection; therefore, the following definitions of and
limitations upon the jurisdiction and authority of the courts of
the United States are enacted."

In one legislative act the injunction was lifted off labor's
back, the yellow dog contract was abolished and a worker could
now enjoy, as the act stated, "full freedom of association... and
that he shall be free from the interference, restraint, or
coercion of employers of labor... in self-organization or in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection." Labor now had its
Magna Charta. Freedom of association was the law. The American
Federation of Labor's goals of ending the labor injunction and
having a law recognizing the right of workers to freely associate
was on the books. Labor could organize, labor could boycott,
labor could strike and employers could no longer rely on the
federal courts for injunctions and the police power of the state
to interfere on the employer's behalf.[2]

Despite these legislative victories, not much changed. It was
1932, the country was in the Great Depression, labor was weak and
the employers still held most of the cards. President Franklin
Roosevelt brought the New Deal to the country the following year.
This New Deal included the establishment of a Labor Board, but
more importantly the Roosevelt administration supported union
organizing as a way to help the country get out of the
Depression. The purpose of Roosevelt's Labor Board (and shortly
thereafter the National Labor Relations Board) was to cut down on
strikes, which hurt production. However, unions WERE encouraged
because the Roosevelt Administration believed that as more
workers were organized, wages would go up. Workers would then
have more money to spend on goods and therefore more goods would
be produced and the country would "grow" its way out of the
Depression -- the opposite of trickle down, trickle up. Many of
Roosevelt's programs were found unconstitutional until he
threatened to stack the Supreme Court.[3] The National Labor
Relations Act of 1935 was found constitutional in NLRB V. JONES &
LAUGHLIN STEEL CORP (1937). The court's opinion reflected the
language of the Norris-LaGuardia Anti-Injunction Act:

"Employees have as clear a right to organize and select their
representatives for lawful purposes as the respondent has to
organize its business and select its own officers and agents.
Discrimination and coercion to prevent the free exercise of the
right of employees to self-organization and representation is a
proper subject for condemnation by competent legislative
authority. Long ago we stated the reason for labor organizations.
We said that they were organized out of the necessities of the
situation; that a single employee was helpless in dealing with an
employer; that he was dependent ordinarily on his daily wage for
the maintenance of himself and family; that, if the employer
refused to pay him the wages that he thought fair, he was
nevertheless unable to leave the employ and resist arbitrary and
unfair treatment; that union was essential to give laborers
opportunity to deal on an equality with their employer."

Furthermore, the Norris-LaGuardia Anti-Injunction Act passed
constitutional muster in February of 1938. This meant that
workers were free to organize and strike; boycotts were legal,
and permanent replacements were not. It meant that the yellow dog
contract and the dreaded labor injunction were history. Despite
these significant labor victories, it didn't mean that large
employers were going to automatically recognize unions. Having
the government out of the way was one thing, having the
government on your side was another. So workers were forced on
their own to shut down entire cities with general strikes and
take over factories in order to gain employer recognition.

As the depression continued to deepen, workers continued to
organize and their power increased to the point that President
Roosevelt was beholden to labor for his re-election to the
presidency in 1936. Labor had become so strong that when workers
took over the General Motors Corporation factory in Flint,
Michigan, late in 1936, neither the governor of the state nor
President Roosevelt sent troops to remove the strikers from the
property of the corporation. The strikers won and 18 sit-downs
followed at other General Motors facilities, culminating in union
recognition. But in May of 1938 the Court took a big step
backward in NLRB V. MACKAY RADIO, ruling that permanent
replacement of strikers was legal; thus the right to strike
became not much more than the right to quit.[4] The Court went on
in NLRB V. VIRGINIA ELECTRIC & POWER (1941) to grant free speech
rights to employers in union certification elections.

Then in 1947 Congress passed the Taft-Hartley "Slave Labor" Act

** created the Taft-Hartley injunction whereby the President can
set in motion injunctions against "national emergency strikes"
that "imperil the national health or safety," thus nullifying the
gains made under Norris-LaGuardia in 1932;

** allowed state legislatures to ban the union shop; ** outlawed
the closed shop;

** made sympathy strikes and secondary boycotts illegal for all
practical purposes; ** barred from participating in NLRB
elections unions that didn't ban Communists from their

** took control of pension, and health and welfare funds away
from unions; ** allowed EMPLOYERS the right to actively and
vocally oppose having labor unions in their enterprises;

** forced foremen out of the unions; ** created the
decertification election; ab

Throughout the 1930s, workers had continued to organize and for a
brief period of our history the government was on labor's side.
Union membership grew from 5.2% of the private non-professional
work force in 1933 to 15.9% in 1939 and peaked at 26.9% in 1953.
Today it hovers around 10%. Along with the decline in union
economic and political power has come a decline in the standard
of living for the majority of workers, whose real wages have been
declining since 1973.

Part 4

How the Labor Movement can expand the Constitution

But the news hasn't been all bad. Because the abolition, suffrage
and labor movements in the 1830s took seriously the words "We the
People" from the Preamble of the Constitution, it has come to
pass that slavery is no more; and not just white males with
property, but all citizens can vote, regardless of race, gender,
or property. The victories of these movements were made part of
the Constitution with the passage of the 13th, 14th, 15th and
19th Amendments.

A number of the legislative goals set and fought for by the labor
movement beginning in the 1830s, like the laws protecting
children in the workplace, health and safety protection for
workers and free public education, have been found
constitutional. However, the right to free association -- the
right to organize -- has not yet made it into the Constitution.
But labor has at times had the POWER to exercise freedom of
association. So the question now is: Given all our history - WHAT

For starters a new National Labor Relations Act (NLRA) must be
rooted in the First Amendment, the 13th Amendment, the
Norris-Laguardia Act and Section 7 of the NLRA, not in the
Constitution's Commerce Clause as the present Act now is.[5] In
other words, the law protecting workers' right to organize cannot
be a subset of the basic law protecting employers. Workers do not
participate in a corporation's decision to join the Chamber of
Commerce. The corporation should not participate in the process
whereby workers form a union.


*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.

University of Illinois Press, 1994), pg. 251.

[2] Norris-Laguardia did not prevent state courts from issuing
injunctions in labor disputes but by 1941, 24 states had passed
their own anti-injunction laws; see Harry Millis and Royal
Montgomery, ORGANIZED LABOR (N.Y.: McGraw Hill, 1945), ph. 647.

[3] Roosevelt's threat to stack the court (which took the form of
legislation, which failed) is merely emblematic of the kind of
political pressure being felt by the Court, pressure which came
from many directions.

(1938). Employer free speech case: NATIONAL LABOR RELATIONS BOARD
V. VIRGINIA ELECTRIC & POWER CO., 314 U.S. 469 (1941).

[5] In principle, Section 7 gives employees the right "to self
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or

Descriptor terms: labor; constitutional law; human rights;
freedom of association; boycotts; strikes; injunctions;
contracts clause; corporations; intangible property;
national labor relations act; norris-laguardia;

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