Labor

Labor Since the late nineteenth century, the U.S. Supreme Court has been the final arbiter of the place of trade unions in American life. During this century of conflict and accommodation, the Court has been an important actor in labor history, but labor, perhaps, has proved an even greater influence on the history of the Court. The relationship between organized labor and the Court has been a tumultuous one. Prior to the New Deal, the labor question came to the Court through two main routes: via judicial regulation of labor relations through injunctions and via Supreme Court scrutiny of reform legislation under the Fourteenth Amendment's Due Process Clause (see Due Process, Substantive). The crisis of the Great Depression as well as the reform coalition of the New Deal (in which labor played a key part) forced the Court to make room for trade unionism in its conception of American political economy. For a moment, it appeared that the Court might give some measure of constitutional protection to peaceful strikes and boycotts, but workers' traditional forms of protest and mutual aid soon lost the constitutional mantle that the Court had seemed about to bestow.

Hostility to Class‐based Reform

From the 1880s through the 1920s, state and federal appellate judges were principal architects of the nation's industrial relations policies. In the 1890s the Supreme Court scrutinized maximum‐hours laws and other protective labor legislation to determine whether such laws infringed on constitutional liberty of contract. In Holden v. Hardy (1898), the Court upheld a Utah law limiting the hours of miners. However, in Lochner v. New York (1905)—the decision that gave the era its name—the Court voided a New York maximum‐hours law for bakers. Muller v. Oregon (1908), in turn, upheld a maximum‐hours law for women. Overall, the Court voided nearly two hundred statutes and upheld roughly half that number during these decades, leaving the exact borders of the states' police power uncertain. But a general point appeared plain: although legislatures might protect “dependent” and “vulnerable” groups within the labor force, broader, class‐based reforms would not pass constitutional muster. In Coppage v. Kansas (1915), the Court held that government could not temper the inequalities that sprang from the “fact that some men are possessed of industrial property and others are not” (p. 17). The Court's hostility toward class‐based reform ambitions helped to shape the political perspective of the nation's labor movement, encouraging a majority of early twentieth‐century trade unionists to embrace the antistatist or “voluntarist” ideology associated with Samuel Gompers. Labor's dominant political outlook came, ironically, to resemble a trade‐union version of the Court's own laissez‐faire constitutionalism. By the same token, the Court's relative hospitality toward hours laws for women and children encouraged and ratified a gender‐based division of the working class. Having once favored universal hours laws, the labor movement increasingly supported hours legislation solely for those “dependent” groups that could not “look after themselves” through collective self‐help.

Antilabor Injunctions

As mainstream unions abandoned broad legislative ambitions in favor of self‐help in the “private” realm of the economy, the nation's courts took an increasingly active role in policing workers' activities in that arena. With each decade, the number of labor injunctions multiplied; between 1880 and 1930, federal and state courts issued roughly 4,300 antistrike decrees. The first appeared during the 1877 railroad strikes, issuing from several federal district courts holding bankrupt railroads in receivership. Irate at the reluctance of local and state officials to suppress the disruptions of the railroads caused by strikes, these federal judges took matters into their own hands, ordering their marshals to deputize volunteers or calling out federal troops to put down strikes. During the next great wave of railway strikes in the 1890s, federal courts enjoined strikes and boycotts against railroads that were not in receivership. For authority, the courts relied chiefly on the new Interstate Commerce Act (1887) and the Sherman Antitrust Act (1890).

In 1895 the Supreme Court appraised this expansion of federal equity powers. The occasion was a far‐flung national boycott of railway cars manufactured and owned by the Pullman corporation. Eugene Debs, president of the American Railway Union, led the boycott, which was condemned by federal courts in almost every large city west of the Alleghenies. Workers dubbed the court orders “Gatling gun injunctions,” after the new weapon used by federal troops to enforce the bans. In In re Debs (1895), a unanimous Court upheld the injunctions and the contempt convictions of Debs and other strike leaders; in bold strokes, it sanctioned the new use of equitable remedies in industrial conflicts.

By the time of the Debs decision, injunctions had been issued against strikes in many other industries besides the railroads. A key reason for this expansion of judicial activism was labor's growing use of the boycott. Arraying national organizations or entire working‐class communities against a single employer, boycotts often lent unions much greater power—and rubbed more abrasively against judges' individualism—than did an ordinary wage strike. Boycotts gave rise to the Court's next important injunction cases. In 1908, Loewe v. Lawlor, the “Danbury Hatters case,” answered a question that Debs left open, holding, with the majority of lower federal courts, that the Sherman Act applied to combinations of workers; the Court also ruled that activities of the defendant hatters' union in publicizing a consumer boycott of the goods of an “unfair” employer was illegal both under the Sherman Act and at common law. Gompers v. Buck's Stove & Range Co. (1911) was a contempt case against Gompers and other national American Federation of Labor (AFL) officials for publicizing another consumer boycott in defiance of a trial‐court injunction. Although it dismissed the contempt proceedings, the Supreme Court rejected Gompers's claim that the First Amendment shielded such protest activities.

Loewe v. Lawlor and Gompers proved crucial in prompting the AFL to turn in earnest to congressional lobbying and campaigning; its goal was statutory abolition of the labor injunction. Years of lobbying bore fruit in the labor provisions of the Clayton Act of 1914, which seemed to bar federal courts from enjoining peaceful picketing or any other communicative activities connected with strikes or boycotts. Gompers greeted the act as labor's “Magna Carta,” but lower federal courts construed the (deliberately) ambiguous language of the act's anti‐injunction provisions in so hostile a fashion that it worked no changes. In 1921 the Supreme Court announced that the key provisions merely codified the common law of the injunction as it already had existed (Duplex Printing Co. v. Deering), and another decade of broad injunctions and broken strikes followed before Congress again considered the matter.

New Deal Reversals

During that decade, organized labor staged massive protests against “government by injunction,” and a growing portion of the nation's political elites became convinced that the repressive, judge‐made rules of the game had to be changed. This conviction, combined with the broader depression‐era decline in business legitimacy and Republican party fortunes, prompted passage of the Norris‐LaGuardia Act in 1932. Compared to the earlier Clayton Act, Norris‐LaGuardia was a less ambiguous, more lawyerly anti‐injunction statute that circumscribed the labor injunction with procedural barriers and safeguards. It perfectly expressed the AFL's attitude toward the role of the courts in labor relations: that it should hardly exist. This time, the courts themselves seemed to agree.

Beginning in the late 1930s, the federal bench affirmed and extended the Norris‐LaGuardia Act's protection of strike and boycott activities to embrace immunity not only from injunctions but also from civil actions for damages. Ironically, though, by the time the Supreme Court upheld the act in Lauf v. E. G. Shinner and Co. (1938) and the lower courts enacted their generous interpretations, Congress and the administration of Franklin D.Roosevelt had rejected voluntarism as the basis for the government's industrial relations policy and put a system of administrative regulation and control in its place.

Labor law in the 1930s was the stage on which the Supreme Court performed the most dramatic about‐face in its history, and a growing trade union movement played a critical role in convincing the Court to abandon its laissez‐faire constitutionalism. At first, the Court seemed determined to defend the old regime. In Schechter Poultry Corp. v. United States (1935), the Court struck down the cornerstone of the Roosevelt administration's new federal labor‐relations policy, the National Industrial Recovery Act, deeming it an unconstitutional delegation of legislative power as well as an expansion of federal authority unwarranted under the Commerce Clause because it reached working conditions in intrastate businesses (see Commerce Power). Likewise, in 1936, the Court found a New York State minimum‐wage law for women to be an unconstitutional interference with liberty of contract (Morehead v. New York ex rel. Tipaldo).

In the fall of 1936, however, President Roosevelt was reelected in a campaign conducted in significant part as a referendum on the Court. In early 1937, he introduced his court‐packing plan. In the spring came two landmark cases in which the Court pragmatically reversed course. West Coast Hotel Co. v. Parrish noted that the “Constitution does not speak of freedom of contract” (p. 391) and upheld the constitutionality of a Washington State law setting a minimum wage for women, a law indistinguishable from the New York statute struck down less than a year earlier. And in National Labor Relations Board v. Jones & Laughlin Steel Corp. the Court upheld the National Labor Relations Act (NLRA), which gave workers in private industry the right to organize and imposed on employers a duty to bargain with their employees' representatives. Roosevelt had signed the act into law in 1935, only two months after the Schechter decision, and employers relied on Schechter and earlier rulings to support their contention that the act was unconstitutional. Those precedents enabled employers' attorneys to tie the new National Labor Relations Board in knots in the lower federal courts for almost two years until the Supreme Court upheld the NLRA board's legitimacy.

Jones & Laughlin was the foundation of a new constitutional edifice extending federal power under the Commerce Clause and recognizing broad governmental authority to regulate the economy. The Court explicitly conceded that asymmetries of power rendered single employees helpless in dealing with employers, and it sanctioned state intervention in the interest of equality. But Jones & Laughlin also rested on other grounds with profoundly different implications for the legal status of unions, creating a tension that would haunt later rulings. On the one hand, the Court recognized workers' “fundamental right” to organize unions; on the other, the Court deemed unions and collective bargaining essential to “industrial peace” (pp. 33, 42). If fundamental, labor's new rights were arguably inviolable, but when conceived as promoting industrial peace, they could be trimmed to fit that purpose.

The doctrine that workers had a fundamental right to organize did not, however, simply constitute a platform for federal legislative protection of union activity. The confrontation between state repression and union organizing in the 1930s and early 1940s provoked a signal change in the Supreme Court's First Amendment jurisprudence, as the Court took its first steps toward extending the constitutional right to free expression to encompass union organizing.

Hague v. Congress of Industrial Organizations (1939) was the first case in which the Court endorsed use of the First Amendment as a sword to enjoin government suppression of expressive activity rather than as a shield from criminal prosecution. When organizers from the Congress of Industrial Organizations arrived in Jersey City, New Jersey, in 1937 to urge workers to exercise their rights under the new NLRA, city authorities denied their right to hold meetings or distribute leaflets and had them arrested and run out of town. Alleging a deprivation of First Amendment rights, the CIO's lawyers sought injunctive relief against Mayor Frank Hague. The Court's ruling in the organizers' favor brought labor organizing under the mantle of constitutional protection.

The Court soon extended the Constitution's protection of speech and association to the most traditional expression of labor grievance—the picket line. Striking down an antipicketing ordinance as overbroad in Thornhill v. Alabama (1940), the Court found that free discussion of the labor question was integral to the “processes of popular government” that shaped the “destiny of modern industrial society” (p. 103). In Thornhill, the Court's focus on the public's First Amendment interest in open discussion of strikes emphasized one strain of its earlier reasoning in Jones & Laughlin. Notably, the Court did not dwell on the rights of strikers to communicate their grievances. Instead, it justified federal protection of labor's rights in the name of informed public regulation of industry. Such recognition of public interest in labor organization—as a means to an end—was a two‐edged sword. It implied state authority to regulate and restrain collective action no less than to protect workers' freedoms.

Labor Loses Ground

Even as the Court upheld the NLRA, it moved to narrow its central provision protecting concerted activity. In a landmark 1939 ruling, National Labor Relations Board v. Fansteel Metallurgical Corp., the Court refused to uphold a board order requiring reinstatement of workers fired after a sit‐down strike. The ruling initiated a process, later adopted by the board, of denying protection where collective activity is considered either too potent a weapon in collective bargaining or an obstacle to the bargaining process. Thirty years after stripping sit‐down strikes of protection, the Court, in Boys Market, Inc. v. Retail Clerks' Local 770 (1970), also put federal courts back in the business of enjoining peaceful strikes and picketing when a strike violates a contractual no‐strike pledge—despite the clear command of the Norris‐LaGuardia Act. As the Court bluntly stated, federal policy had shifted from the “protection of the nascent labor movement to the encouragement of collective bargaining” (p. 251)—that is, from a theory of fundamental rights to a theory of functional rights.

As the Court increasingly gave primacy to the public purpose furthered by endowing labor with rights rather than to workers' fundamental rights themselves, it allowed workers' statutory rights to be refashioned while also upholding state intervention into internal union affairs. These rulings undercut the principles established by Hague and Thornhill. With the passage of the Taft‐Hartley Act in 1947, the Court confronted an array of measures curbing the labor movement's new legal freedoms. Taft‐Hartley sharply restricted workers' right to select their own representatives, requiring union officers to swear they were not members of the Communist party on pain of disqualifying their unions from federal protection (see Communism and Cold War). The Supreme Court upheld that requirement in American Communications Association v. Douds (1950). The Court acknowledged that Taft‐Hartley inhibited lawful exercise of political freedoms, but, pushing the reasoning of Jones & Laughlin to its logical conclusion, the Court ruled that precisely because the NLRA rested on public interest in “the free flow of commerce,” Congress could legislate against the threat to “that public interest” posed by Communists in positions of union leadership (pp. 387, 400).

In an equally significant line of rulings, the Court upheld Taft‐Hartley restrictions on union picketing that urged consumers or fellow workers to pressure employers to cease doing business with an employer involved in a labor dispute. This ban on “secondary activity” aimed to check the spread of labor unrest. In Electrical Workers v. National Labor Relations Board (1951), the Court ruled that such restrictions did not unconstitutionally abridge free speech, a decision flowing from a body of precedent that had gradually eroded the expansive protection of labor expression promised in Thornhill. Just a few years later, in Teamsters, Local 695 v. Vogt, Inc. (1957), the Court declared that this line of cases gave the states the broad prerogative to enforce public policy by “constitutionally enjoin[ing] peaceful picketing” (p. 293). By the late 1950s the Court thus had affirmed that the public's interest in labor peace could override even the rights that workers derived from the First Amendment. It again routinely upheld labor injunctions, much as it did in Samuel Gompers's day.

In the 1960s, legal advocates for African‐American citizens stood on the precedents won by organized labor in urging the Supreme Court to expand First Amendment protections and federal legislative power to protect civil rights. By then, however, the legal ground had shifted under the feet of the trade union movement. In 1982, three decades after the Supreme Court made clear that labor picketing was subject to close regulation, it held in National Association for the Advancement of Colored People v. Clairborne Hardware Co. that the First Amendment shielded peaceful picketing by civil rights groups in support of a boycott of white merchants. Citing Thornhill as support, the Court nevertheless carefully distinguished secondary labor picketing from the protected civil rights advocacy. And, ironically, twenty years after the Court upheld the authority of Congress to guarantee civil rights in employment, public accommodations, and other areas, the union movement began to call for repeal of the NLRA—the very act that had precipitated the legal revolution of the New Deal, paving the constitutional way for the Civil Rights Act of 1964. The Supreme Court's jurisprudence bears the indelible imprint of workers' collective activity. Nevertheless, while labor's legal legacy has advanced the rights of other citizens, it has left organized workers with scant protection.

See also Capitalism; Contract, Freedom of.

Bibliography

James B. Atleson , Values and Assumptions in American Labor Law (1983).
John R. Commons , Legal Foundations of Capitalism (1924).
William E. Forbath , Law and the Shaping of the American Labor Movement (1991).
Christopher L. Tomlins , The State and the Unions (1985).

William E. Forbath and and Craig Becker