YELLOW DOG CONTRACT

An employment agreement whereby a worker promises not to join alabor unionor promises to resign from a union if he or she is already a member.

Until the 1930s, employers were able to use a variety of measures to prevent employees from joining labor unions. One of the most effective was the yellow dog contract, which frequently forced employees to either sign an agreement not to join a union or be fired. Courts upheld the legality of yellow dog contracts and frequently struck down state laws that sought to outlaw them. The enactment of the wagner act in 1935 (29 U.S.C.A. § 151 et seq.) finally put an end to these types of agreements.

The U.S. Supreme Court's hostility to efforts by government to outlaw the yellow dog contract was rooted in the concept of "liberty of contract." Near the end of the nineteenth century, the Court used the due process provisions of the Fifth and Fourteenth Amendments to the U.S. Constitution to strike down federal and state laws regulating business. These amendments provide that no government was to "deprive any person of life, liberty, or property, without due process of law." The Court interpreted this prohibition to include the negotiating of terms of employment between an employer and an employee.

Therefore, in Adair v. United States, 208 U.S. 161, 28 S. Ct. 277, 52 L. Ed. 436 (1908), the Court struck down a federal law that protected union members by prohibiting yellow dog contracts and the discharge or blacklisting of employees for union activities. In his majority opinion Justice john harlan presumed that there was equal bargaining power between an employer and an employee, and that the law was an unreasonable intrusion on personal liberty and property rights, as guaranteed by the fifth amendment.

When Kansas enacted a law prohibiting yellow dog contracts, the Court declared the law unconstitutional under the fourteenth amendment as an infringement of freedom of contract. Coppage v. Kansas, 236 U.S. 1, 35 S. Ct. 240, 59 L. Ed. 441 (1915).

The Wagner Act of 1935 gave employees the right to join unions and to bargain collectively with their employers. Congress outlawed the yellow dog contract and other unfair labor practices on the part of employers, finding that these practices were contrary to public policy. Existing yellow dog contracts were declared unenforceable by the courts. The Supreme Court's upholding of the constitutionality of the Wagner Act in nlrb v. jones & laughlin steel corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937), meant the end of the yellow dog contract.

further readings

Cushman, Barry. 1992. "Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract." Supreme Court Review (annual).

Ernst, Daniel. 1989. "The Yellow-Dog Contract and Liberal Reform, 1917–1932." Labor History 30 (spring).

cross-references

Labor Law; Substantive Due Process.

Yellow Dog Contracts were used by employers during the late nineteenth and early twentieth centuries to keep their employees from joining labor unions. Such contracts made it a condition of employment that the worker not belong to any union. Under such agreements, union membership was grounds for dismissal. In operation, yellow dog contracts coerced workers into staying out of unions; a prospective employee contracted on this condition or lost the chance to work. Labor organizers deeply resented these agreements and labeled them “yellow dog” (i.e., contemptible) contracts. To assist the union movement, Congress and many state legislatures outlawed yellow dog contracts, but in Adair v. United States (1908) and Coppage v. Kansas (1915), the Supreme Court, relying on the freedom of contract doctrine, struck down both state and federal bans on the contracts. During the New Deal era, Congress and state legislatures revived the prohibitions. The Norris‐LaGuardia Anti‐Injunction Act of 1932 declared such agreements contrary to public policy and unenforceable in federal courts. By adopting “little Norris‐LaGuardia acts,” various industrial states copied this restriction on yellow dog contracts. In 1935 the National Labor Relations Act, which forms the basis of modern labor law, recognized an employee's right to join a union. It also labeled interference with this right as an unfair labor practice. Today, therefore, yellow dog contracts are implicitly outlawed.

Richard F. Hamm

YELLOW DOG CONTRACTS

A yellow dog contract is a labor contract in which workers are required to refrain from joining a union in exchange for being hired. It emerged in the nineteenth century as one of many tactics companies used to discourage workers from organizing to win wage increases and improved working conditions.

During rapid industrialization of the United States in the years after the American Civil War (1861–1865), many workers endured seven-day workweeks, minimal pay, and inhumane working conditions. As a result, the U.S. labor movement successfully organized many new unions. As unions pushed for eight-hour days, pro-business legislators and sympathetic judges passed laws to prevent labor unions from recruiting new members. Across the country legislatures passed laws outlawing "combinations" of workers that, in the words of one such law, "willfully or maliciously injured another in his . . . business." Because unionizing a company's labor force could be viewed as "injuring" that business, union activism was successfully thwarted.

In the famous Pullman Strike of 1894 which was led by socialist Eugene V. Debs (1855–1926), members of the American Railway Union went on strike against the Pullman Palace Car Company of Chicago when it cut wages by 25 percent. Refusing to work on any train that pulled a Pullman railcar, the union looked like it could prevail because almost every train passing through Chicago carried Pullman cars. When the striking workers began attacking the trains, however, President Grover Cleveland (1885–1889) called in the U.S. Army to end the strike. When Pullman reopened its plant later that year, it required all new employees to sign yellow dog contracts.

In 1898 Congress passed the Erdman Act, which prevented railroads that were engaged in interstate commerce from forcing their employees to sign yellow dog contracts. In Adair v. the United States, however, the U.S. Supreme Court ruled that the Erdman Act was unconstitutional. Throughout the 1920s many U.S. businesses continued to require workers to reject union membership as a precondition of employment, but the onset of Great Depression (1929–1939) finally shifted the law to the side of labor. The Norris-LaGuardia Act of 1932, the National Industrial Recovery Act of 1933, and the Wagner Act of 1935 formally recognized the rights of labor unions to organize and explicitly outlawed yellow dog contracts.

See also: Closed Shop, Labor Movement, Labor Unionism, National Industrial Recovery Act, Norris-LaGuardia Act