PANEL: Labor, Law, and the State in the Interwar Period
Saturday, October 24, 3:30-5:00Chair: Katherine Van Wezel Stone, Cornell Law School
Petting the Infamous Yellow Dog: Teachers, the State, and Public Sector Labor Law in Seattle
Joseph E. Slater, Department of History, Georgetown UniversityIn 1928, a Seattle union appealed an adverse lower court ruling to the Washington state Supreme Court. The Seattle Post-Intelligencer claimed the matter presented "probably the biggest labor question ever faced in this state." Surprisingly, the case involved a local union of high school teachers, contesting the imposition of a yellow dog contract. This started a struggle that lasted nearly three years between the teachers' local and its allies--notably private sector unions--and the School Board and its allies--notably private sector business. The fight took place in the courts, in local and state elections, and in a battle for public opinion. It drew national attention. Union advocates were mostly victorious in one School Board election; mostly defeated in the next; and ultimately lost in the Supreme Court, in Sharples v. Teachers' Union Chapt. 200, 159 Wash. 424, 293 Pac. 994 (1930). Yet, less than a month after the Supreme Court held against the Union, the School Board dropped the yellow dog rule.
This event demonstrates that labor law played a crucial role in government employment. In recent years, many scholars have stressed the importance of labor law in shaping the nature of unions in the U.S. Yet all these studies have addressed the private sector. Labor law in the public sector has always been different and more restrictive than that in private employment, offering an excellent opportunity for comparative study. Moreover, the significant increase in union density in the public sector in the past thirty years, along with an accompanying decline in density in the private sector, means that labor and legal historians can no longer simply equate "labor law" with the private sector.
The Seattle story shows how willing AFL unions were, even at the supposed height of the labor's "voluntarist" period, to participate in politics on behalf of public sector locals. Also, when "bringing the state back in," scholars need to understand the role of the state as an employer; here, state officials were panicked at the prospect of "class control" of the schools by an AFL union, and unionists were intrigued at the prospect of electing their employers. As legal history, the case demonstrates how law affects the strategy and tactics of interest groups, and shows how the result "on the ground" can be much more ambiguous than in the text of a decision.
Battle on the Benches: The Wagner Act and the Federal Circuit Courts of Appeals, 1936-1942
Douglas J. Feeney, Department of History, SUNY BinghamtonThe National Labor Relations Act of 1935 represents one of the most radical pieces of national legislation signed into law. Never before, at least in peacetime, had the federal actively encouraged workers to organize and join labor unions. The NLRA outlawed employer anti-union efforts and provided the necessary administrative/adjudicative machinery, the NLRB, necessary to protect workers' rights to organize. Not all three branches of government, however, were equally receptive to the new course in American labor law charted by the Wagner Act. The judges sitting in the ten federal Circuit Courts of Appeals, the branch of the federal judiciary charged with oversight of Board activity, found themselves deeply divided over the NLRB's enforcement of the labor legislation. It is this battle over the Wagner Act waged within the federal judiciary concerned over a newly powerful state bureaucracy that is the subject of this paper. While judges in the Eighth Circuit eagerly endorsed and deferred to the Board's aggressive enforcement of the Act, those in the two southern circuits used labor board cases to voice their opposition to the burgeoning administrative and regulatory New Deal state which continually assumed powers not granted to it by the Constitution. These judges severely limited the Board's power within the private employment relationship and, unlike those in the Eighth, steadfastly defended traditional judicial territory from the zealous administrative/adjudicative federal agencies created during the New Deal.
The Search for Constitutional Protection of Labor Standards, 1924-41: From Interstate Compacts to Treaties
Edward C. Lorenz, Department of History, Alma CollegeAfter World War I, a coalition of labor, social welfare, religious, and political leaders from the Northeast, saw in national labor standards a cure for the movement of the Northern textile industry to the South. With significantly higher productivity but much higher wages and much stricter regulation of working conditions, the old industrial regions could not compete with New South. Yet, in the era the Supreme Court clearly would not allow national labor standards.
Turning to labor law experts linked to the American Association for Labor Legislation and the Consumers' League, the northerners found in the interstate compact process the potential solution to their problems. Yet, after considerable effort, including formation of compact interest groups, the process failed to elicit support in the very states with the least standards. The leaders then turned to the treaty power and the ratification of International Labor Organization conventions as the solution. While the Court's acceptance of the Fair Labor Standards Act in 1941, undermined the interest in international labor standards in the following decades, the arrival of the current global economy, with its pressures on labor standards even in the South has given renewed relevance to the earlier international standards process. The process also teaches us much about the extremes to which policy makers had to go to overcome the exceptional American restrictions on labor law innovation. Finally, the process of winning U.S. support for the ILO demonstrates the role of academic, labor, and religious interest groups in formulating labor policy.
Representatives of Their Own Choosing? Certification, Elections, and Employer Free Speech in the U.S. and Canada, 1933-59
John Logan, Department of History, University of California, DavisIn the late 1950s, the leading scholar of Canadian labor law, Harry D. Woods, criticized Canada's labor policy on trade union certification, which, he argued, presented formidable obstacles to the establishment of collective bargaining arrangements. With the support of many national Canadian labor leaders, Woods proposed the reform of provincial and national labor law along the lines of US labor policy. Woods concluded, "Canadian policy is not as favorable to the promotion of collective bargaining relationships ... there has been a more positive attitude toward collective bargaining in the United States than in Canada. Canadian policy regarding union membership and voting quotas... has made recognition more difficult to attain in Canada."
In the 1990s, in contrast, few North American labor leaders or their academic friends would dispute that Canadian labor policy governing certification promotes unionization and collective bargaining to a far greater extent than its US counterpart. My paper analyzes the development of labor policy on state certification of bargaining representatives in the US and Canada during the crucial formative years 1933-1959, and explains why many Canadian labor advocates wanted the US certification system in the 1940s and 1950s, but forty years later resist any attempts to introduce US-style certification elections at the national or provincial levels.
The paper analyzes why the NLRB "voluntarily" abandoned authorization cards as a regular means of certifying workers' bargaining representatives in 1939, examines how employers' organizations influenced and responded to NLRB decisions, court rulings, and congressional statutes defining certification policy, and evaluates the impact of these policy changes on unions' declining success rates in NLRB-supervised elections. In the 1940s and 1950s, the Canadian labor movement lobbied persistently, but unsuccessfully, for the adoption of a Wagner-style certification policy. Much to the consternation of the Canadian labor leaders, national and provincial labor boards required that, prior to certification, unions demonstrate that a majority of workers in designated bargaining units were "members in good standing," or that unions win the support of a majority of eligible voters in secret ballot elections. In the postwar decades, labor leaders criticized the Canadian law's emphasis on extensive documentary evidence of union membership and its high requirements of support during elections. Today, Canadian unions adamantly defend certification based on union membership cards and Canadian law's tough legal sanctions against employer interference during election campaigns.
Comment: Christopher L. Tomlins, American Bar Foundation