On March 1, 1932, the Norris-LaGuardia Act passed the Senate by a 75-5 vote and was signed by President Herbert Hoover a few days later. This critical act outlawing some of the most loathsome tactics used by employers against workers laid the groundwork for the rapid growth of labor rights over the next several years.
In the Lochner era, a misnomer that uses a single court case to represent a doctrine of work that had already existed for more than a half-century before that 1905 decision, there was a widespread belief in the sanctity of the contract between employers and workers. In other words, if a worker agreed to work on a job, it was inherently implied that said worker agreed to the conditions of work the employer set. If the employer created conditions where the worker did not want to sell his or her labor, that worker could quit. Of course, this completely ignored power dynamics. The idea that a single worker in the Gilded Age held equal power as the employer was beyond absurd. But employers and politicians held on to this ideology with great tenacity. In the years after Lochner, it began to be chipped away, such as the Mueller case, where the Supreme Court revised Lochner to create exceptions for some women workers. But the overall framework held strong well into the 1920s. Courts routinely ruled that unions were unlawful combinations whenever they did something effective and that strikers were illegal conspiracies that halted interstate commerce, while of course allowing monopolies to do whatever they wanted in ways that actually were unlawful combinations and illegal conspiracies to limit interstate commerce except in ways that helped corporate bottom lines.
One of the ways that employers took advantage of this ideology was the so-called “yellow-dog contract.” This made it a condition of employment that a worker not be a union member. This was an outrage for both workers and for the Populist movements that had briefly taken power in many states during the late 19th and early 20th century and outlawed them. New York was the first, in 1887. Congress did the same nationally, at least for railroad workers, with the Erdman Act of 1898. The Supreme Court routinely struck against these laws. In 1915, the Supreme Court ruled 6-3 in Coppage v. Kansas that a Kansas law banning the yellow-dog contract was unconstitutional. In 1917, the Supreme Court, in Hitchman Coal and Coke Co. v. Mitchell, expanded upon the previous decision, ruling that yellow-dog contracts were enforceable by law. This disgusted not only labor activists but a lot of Progressives, who believed that unions should at least be legal, even if they did not believe in the closed shop or other elements of labor solidarity.
After Hitchman and in the wake of the Red Scare shortly to follow, employers increased their use of the yellow-dog contracts and their political opposition grew. Moreover, aggressive uses of injunctions, also increased by Hitchman, led to courts effectively outlawing the United Mine Workers in West Virginia. By the late 1920s, the movement against the yellow-dog contract had grown. In 1930, the Senate rejected Hoover’s nomination of John Parker to the Supreme Court because he had upheld yellow-dog contracts as a judge. As the Great Depression deepened and the overwhelming demands of workers for dignity became impossible to ignore, the momentum for labor law reform became hard to stop. This wasn’t per se because of a great rush to support unions, but rather because the yellow-dog seemed an anachronism of the violent anti-union days that the middle-class of the 1920s, much more interested in soft anti-union power such as company unionism, increasingly found embarrassing. Behind this reform was two of the great progressive Republicans of the period, Nebraska senator George Norris and New York congressman Fiorello LaGuardia. The roots of the bill came in the late 1920s, as pro-labor senators used language coming recent court cases, including from William Howard Taft, that noted the contract ideology that dominated the workplace made no sense when government and business combined to make the idea that workers and employers had equal power in agreeing to work completely antiquated, even as it in fact had been for many decades by this point. Said Harvard labor economist Carroll Daughtery in the Harvard Business Review yellow-dog contracts were “among the greatest strongholds of individualism” in an America where the economic reality made laissez-faire individualism “outmoded and outworn.” The final bill outlawed the yellow-dog contract, established the principle that unions are free to form without employer interference (although it had no real enforcement mechanism for that principle), and prevented federal courts from issuing injunctions in nonviolent labor strikes, which had been a classic strategy of employers to bust their unions in the past half-century.
Organized labor was somewhat ambivalent about Norris-LaGuardia because it undermined the voluntary nature of unionism that had been dear to craft unionists since the 19th century. American Federation of Labor-affiliated unions saw themselves as private, volunteer organizations outside of government regulation. Norris-LaGuardia began to change that in ways that would become much stronger in a few years. 1932 was a major year of transition for the AFL around these issues. It was only in that year when union leaders faced a rank and file revolt over unemployment insurance that the AFL finally came around to endorsing even a program that would directly help its members because it reeked of government involvement with unions. It did ultimately support Norris-LaGuardia, even though it wanted greater protection from injunctions than the bill provided. AFL head William Green testified for the need to eliminate the yellow-dog. Business of course opposed the bill.
The Norris-LaGuardia Act was a law passed at a time when the federal government was still in a nascent period of reform and when the discomfort with much government interference in the economy was still strongly felt in both parties. It would take much, much more, including strikes, the murder of workers, and groundbreaking labor law within a new conception of the state, to create real rights for workers in the United States. However, Norris-LaGuardia is a key early moment in this struggle.
Norris-LaGuardia only applied to private sector workers. Government workers, especially teachers, were forced to sign yellow dog contracts into the 1960s and it was only when the government opened up the public sector to organizing that this finally ended. Much of the anti-injunction power of the bill was regained by employers with the passage of the Taft-Hartley Act in 1947.
I borrowed a bit of this post from Ruth O’Brien’s Workers’ Paradox: The Republican Origins of New Deal Labor Policy, 1886-1935 as well as from Daniel Ernst, “The Yellow-Dog Contract and Liberal Reform, 1917-1932,” published in Labor History in 1989.
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