Labor in the making of the welfare state

Welfare states, by most accounts, depend on labor movements, but labor movements do not always support welfare states (Boxall Reference Boxall, Blyton, Heery, Bacon and Fiorito2008; Hyman Reference Hyman2001; Marks Reference Marks2014). The exclusive orientation of the early-twentieth-century American labor movement is particularly stark when compared to its anti-socialist, “bread and butter” counterpart in the UK. The movement’s unique commitment to business unionism has been explained in various ways. Among these is the timing of democratization – whereas most British white male workers were granted the right to vote by the mid-1880s, many American property-less white males had received voting rights as early as the late 1820s. The result was a shared white male political identity that cut across class lines; deviating from the class-based struggles for political representation, which characterized late-nineteenth-century Europe (Dawley Reference Dawley2000). The ethnic and racialized nature of American labor markets has equally been held to have divided the labor movement along lines of ethnicity, race, and grade level. While ongoing influxes of immigration created segregated linguistic, cultural, and occupational communities, the exclusion of newly freed Black workers from the crafts perpetuated exploitation and discrimination by both employers and labor associations (Bridges Reference Bridges, Katznelson and Zolberg1986; Davis Reference Davis1980; Du Bois Reference Du Bois2022 [1906]; Roediger Reference Roediger1999). These dynamics were compounded by patterns of urbanization and the resulting division between work and community (Katznelson and Zolberg Reference Katznelson and Zolberg1986). Additionally, the proliferation of scientific management practices in the USA is thought to have divided workers’ interests and prevented all-grades organization. And finally, the federal structure of the US government, and the realities of sectional politics, made it difficult for workers to form a single national interest group advancing a labor cause (Archer Reference Archer2008; Friedman Reference Friedman1988; Hacker Reference Hacker1998; Haydu Reference Haydu1991; Kirk Reference Kirk1994; Shefter Reference Shefter1994; Skocpol and Amenta Reference Skocpol and Amenta1986; Skowronek Reference Skowronek1982).

While these are certainly powerful factors in explaining the emergence and persistence of a conservative tradition within the American labor movement (Taft Reference Taft1963), they do not necessarily explain why this wing came to define the strategy of the movement as a whole. Toward the end of the nineteenth century, a parallel wing led by immigrant, precarious, and women workers emerged and gained momentum (Montgomery Reference Montgomery and Morris2014). The railway industry is especially demonstrative of this tendency: during the 1870s, immigrant workers were recruited en masse to feed the industry’s insatiable demand for labor. In subsequent decades, these workers organized into radical trade unions and delivered groundbreaking strikes – but ultimately, their organizational model would not prevail.

Why, then, did the exclusive orientation of the AFL and the Railway Brotherhoods come to predominate over the more progressive vision of the Knights of Labor and the ARU? Kim Voss (Reference Voss1993) convincingly points to the violent mobilization of American employers in crushing this alternative model. The power of US employers was sanctioned and strengthened by the military and economic weight of the American government. Far from a state of “courts and parties” (Skowronek Reference Skowronek1982: 24), the US government actively shaped the resolution of labor disputes (Forbath Reference Forbath1991). I argue that its interventions were not only decisive in determining the outcome of monumental national strikes; they also served to delimit the boundaries of legitimate organization and diffuse particular organizational forms.

This claim is drawn from substantial work in the field of organizational sociology, which pays special attention to the rules of political behavior – expressed through the routines, procedures, conventions, and codes through which political participation takes place. Rather than rational or utilitarian calculation, organizational sociologists have argued that organizations navigate these existing repertoires and adapt their operations in line with “logics of appropriateness” mirroring their environment (March and Olsen Reference March and Olsen1989: 22). In the words of John Meyer and Brian Rowan, “Institutional rules function as myths which organizations incorporate, gaining legitimacy, resources, stability, and enhanced survival prospects” (Meyer and Rowan Reference Meyer and Rowan1977: 340). The state has a special role in legitimating or delegitimating various organizing models (DiMaggio and Powell Reference DiMaggio and Powell1983; Meyer and Rowan Reference Meyer and Rowan1977; Stryker Reference Stryker and Lounsbury2000). Organizational change, then, is likely to take place: “when the transformation of environmental conditions renders previous organizational strategies and orientations obsolete, such that an organizational form…is faced with extinction” (Haveman Reference Haveman1992: 49).

Law has an especially important role in the proliferation of organizational identities and practices. In relation to the US labor movement, the persistence of the master–servant laws, power of judicial interpretation, emphasis on procedural rights, ongoing use of the conspiracy doctrines, and injunctions under the Sherman Anti-trust laws have all been linked with the evolution of “business unionism” (Hattam Reference Hattam1993: 18; Ernst Reference Ernst1995; Forbath Reference Forbath1991; O’Brien Reference O’Brien1998; Orren Reference Orren1991; Tomlins Reference Tomlins1985). While the expansive body of literature on law and the American labor movement demonstrates the barriers to industrial unionism, it does less to demonstrate why key trade unions did maintain and expand their own insurance benefit schemes. The following sections build on existing accounts, highlighting the importance of benefit provision in offering a legal cover for trade unions operating in hostile judicial settings. In doing so, they illustrate how nineteenth-century liberal elites made use of organizational laws to circumscribe the activities of a growing industrial working class. They also demonstrate how the organizational environment in which trade unions operate affects their political orientations.

The legal context for the emergence of voluntarism

The emergence of voluntary benefits among trade unions is widely attributed to the practicalities of sectoral development, management practices, and opportunities for gradual reform (Haydu Reference Haydu1991; Joseph Reference Joseph2000; Kirk Reference Kirk1994; Marks Reference Marks2014). In the following section, I argue that, in addition to these concrete variables, cultural and institutional norms played a significant role in encouraging trade union provision of voluntary benefits. In particular, I look at how the legal regulation of associational life defined legitimate and illegitimate combinations of workers and what role benefits played in this process of legitimation.

At first glance, the trajectory of legislation on workers’ associations in the USA and the UK might seem dramatically different – in the former, trade unions received legal recognition as early as 1842 with the Commonwealth v. Hunts case. By contrast, the latter left trade union activity outside the law until the Trades union Act of 1871. The differences were far less meaningful in practice: in both countries, trade unions were able to obtain legal recognition so long as they were organized toward admissible ends.

The provision of voluntary insurance benefits was high on the list of such respectable aims. This is quite apparent in the UK, where legal recognition for trade unions depended entirely on their registration as friendly benefit societies. First emerging among craftsmen in the 1760s, by 1794 friendly societies were to be found across England (Eden Reference Eden2011 [1797]). Originally characterized as “mischievous” and “dangerous” combinations (Gosden Reference Gosden1961: 156–57),Footnote ¹ friendly societies were soon embraced as vehicles for the promotion of voluntarist Victorian values like hard work, self-help, and thrift. Much like the invisible hand, the ideology of voluntarism linked individual rights and responsibilities with collective enrichment (Smiles Reference Smiles1862).

The first law regulating friendly societies was Rose’s Act of 1793. The Act offered legal protection to societies “of good fellowship” organized “for the purpose of raising from time to time…by voluntary contributions…a fund for the mutual relief and maintenance of all and ever the members thereof in old age, sickness, and infirmity” (House of Commons 1793: 125). To be exempt from the prevailing combination laws, societies had to submit their rules and accounting books for approval by a government body known as the Registrar of Friendly Societies. In 1828, the societies were permitted to appoint trustees, “of whom the majority shall be substantial householders” to manage property and represent them in court (UK Parliament 1828: 3). As their membership surged, the societies engaged in cautious tit for tat negotiations, whereby they progressively surrendered to greater government oversight in exchange for legalization and protection.

The Act of 1834 extended the purposes for which societies could be formed – to include provision for widows and orphans, as well as insurance for sickness and advanced age. In exchange for this recognition, the societies “discountenance[ed] trade unions, and [did] not allow assistance to be given to those who leave employment in strikes or turnouts,” thus “promoting good will to all men” (Spry Reference Spry1867: 39). In one of many letters sent to the Queen, Oddfellows officials write:

After offering full legal protection to the Oddfellows and the Foresters in 1848, the Acts of 1849, 1850, 1855, and 1858 protected the funds of registered societies at the same time as they increased regulation of insurance rates and promoted greater society solvency (Cordery Reference Cordery1995). Progressively, the societies were granted the legal protection offered corporations under the guise of voluntary association (Davis Reference Davis1876).

Despite the claims of the Oddfellows officials, British trade unions commonly registered as friendly societies throughout the nineteenth century. In the first report from the Select Committee on Artizans and Machinery, trade union representatives questioned repeatedly stress the benefit features of their associations. Nevertheless, the report concluded that:

It is no surprise, then, that the national amalgamated unions of the mid-nineteenth century cultivated an extensive system of craft benefits; this benefit system is precisely what enabled them to claim that they were organized for “benevolent, rather than fighting purposes” (Amalgamated Society of Engineers July 1851: 137). Over the course of decades, leaders of these craft unions managed to avoid elite hostility by maintaining that the organizations were mere occupationally friendly societies. Like friendly societies, craft unions argued that their benefit system enabled workers to morally uplift themselves and their communities by enhancing their independence and promoting thrift. In August of 1851, the General Secretary of the Amalgamated Society of Engineers (ASE) pronounced, “Instead of accumulating power to do battle with other interests, [trade unions] must husband resources to forward that peaceable, intelligent, industrial process which shall lift the operative into a higher condition” (ASE October 1851: 137). Far more than a practical necessity, benefits thus served as a symbol of cultural alignment and respectable values that enabled early British trade unions to survive amid ruling class hostility.

By most accounts, the voluntary ideal originating in the UK reached unrivaled proportions in the USA. Across the early states, voluntary association was encouraged and promoted – in the words of William Novak (Reference Novak2001: 172), “Nineteenth century legislators, judges, and commentators defended associations not as alternatives to a legal-constitutional state, but as constitutive components of it.” With the proliferation of associational bodies, the nascent American government delegated authority while exercising public power. Jurist Francis Leiber argued that self-ruling associations constituted “a vast system of institutions whose number supports the whole as many pillars support the rotunda of our capital” (Novak Reference Novak2001: 174; see also Clemens Reference Clemens2020).

Voluntary associations were also viewed as an alternative to wasteful working-class leisure activities. Benefit societies held a special place in this framework – providing material assistance in times of hardship and thus reducing support for political radicalism (Witt Reference Witt2009). The principle of voluntarism reinforced the contract as the foundation for social arrangements, harnessing the advantages of collective association without the threat of conspiracy. Unlike British-friendly societies, American fraternals were organized on a cross-class basis, and benefits were distributed exclusively to “deserving” members (Beito Reference Beito1997, Reference Beito2000).

Similar to the British-friendly societies, then, American fraternals for the most part advanced a politics of respectability, contending that “labor, to be respected, must respect itself among mankind as well as at home. It must command the respect of the rich, and thus influence and induce a willingness to divide the accumulations of wealth” (Upchurch Reference Upchurch1887: 140). In Mary Ann Clawson’s words, the organizations represented “a cultural institution which not only maintained but idealized solidarity among white men…offer[ing] gender and race as appropriate categories for the organization of collective identity” (Clawson Reference Clawson1985: 694). In the words of Brian Greenberg, they were “bulwarks of the status quo, conservers of traditional morality, transmitters of existing social values” (Greenberg Reference Greenberg1985: 97).

Just as in the UK, US trade unions adopted the character of mutual benefit societies in their early form. Trade union names like the Knights of St. Crispin, Patrons of Husbandry, and the Knights of Labor make explicit reference to the imagery and ritual practices of fraternal organizations, testifying to the societies’ overlapping membership and the importance of the fraternal mode in early trade union organization. The arrangement of these unions according to local, grand, and supreme lodges and frequent reference to fraternal ties further indicates the importance of the fraternal form for the early US labor movement.

This organic embrace of fraternal benefits by trade unions was fortified by legal means. Early fraternal benefit societies in the USA gained easy recognition through statutes of incorporation. Mutual aid societies and fraternal orders were granted special charters that facilitated this status. In 1848, New York allowed for the incorporation of “benevolent, charitable, scientific, and missionary societies” (Bloch and Lamoreaux Reference Bloch and Lamoreaux2015: 3). In the following two decades, California, Ohio, Maryland, North Carolina, New Jersey, Kentucky, Massachusetts, Kansas, Iowa Illinois, and Wisconsin passed similar regulations (ibid.). Such rights were expressly denied to labor unions, radical reform associations, anti-slavery groups, and immigrant organizations. In this way, early laws of association explicitly elevated mutual benefit organizations over other organized groups. In both the USA and the UK, association for the purpose of benefit provision was recognized, while other trade union functions were not.

The legitimating function of benefits is visible across records from early labor disputes. In the first reported legal case arising from a strike in US history, the Cordwainers trial of 1806, the Federal Society of Journeymen Cordwainers were accused of being neither “an incorporated society…[nor] a society instituted for benevolent purposes…but merely a society for compelling by the most arbitrary and malignant means the whole body of journeymen to submit to their rules and regulations” (Lloyd Reference Lloyd1806: 8).

To gauge the accuracy of such accusations, the jury enquired “whether there was any provision made for married or other distressed members,” to which the witness responded, “No; the sole object was to raise and support their wages.” In defense of the union, it was held that “the objects of their thus uniting, and meeting together, were the advancement of their mutual interests; the relief of the distressed and indigent members; and, generally, to promote the happiness of the individuals of which their society was composed” (ibid.: 44). Across early labor disputes, trade unions like the Cordwainers, Journeymen Tailors, Shoemakers, and Typographical associations similarly resisted accusations of malicious combination with reference to their beneficial features (Commons and Sumner Reference Commons and Sumner1910).Footnote ²

In 1842, the Massachusetts Supreme Court was the first to legalize labor combinations with the Commonwealth v. Hunts decision. A close reading of the decision, however, reveals that this legality depended almost entirely on the legitimacy of their stated objects. In his decision, Chief Justice Lemuel Shaw reasoned that legalizing combinations

He maintains, however, that “if, under cover of meritorious and avowed objects, people associate for secret purposes injurious to the piece of society or the rights of its members, it is undoubtedly a criminal conspiracy” (ibid.: 129). In the following decades, the legality of any working-class association would depend on an assessment of its objects. In Pennsylvania, an 1869 law reiterated that trade unions would be legal if formed for “mutual aid, benefit, and protection” (Pennsylvania General Assembly 1869). Even as conspiracy laws were repealed, the objects of trade unions remained under scrutiny. In both the USA and the UK, then, the benefit features of trade unions emerged not only as a protection against the vicissitudes of industrial development but as an organizational lifeline in a legal environment that primarily legitimated them as benefit societies.

The emergence of a voluntarist railway movement

The importance of benefits as a vehicle for legitimation is evident in the development of railway unions in both contexts – while their overall strategy differed, with the British Railway Servants organized along industrial lines and the American Brotherhoods along a craft basis, both developed an expansive benefit infrastructure that explicitly mimicked that of friendly and fraternal societies.

Following decades of unsuccessful organization among railway workers and a 170% increase in the railway labor force, the ASRS was founded in 1871 by George Chapman and Baxter Langley. The former was a mechanic who had participated in efforts to organize the signalmen of the South London Railways throughout the strike wave of 1866; the latter was a radical journalist and reformer (Gupta Reference Gupta1960). The union was able to consolidate and grow thanks to backing and support from Liberal Member of Parliament Michael Thomas Bass. The head of a large brewing company, Bass represented a “direct link between the early factory paternalism…the philanthropy of mid-Victorian stability and the beginnings of nationally based union organization” (Revill Reference Revill1999: 203). As the parliamentary representative for Derby, he appealed directly to railwaymen as an electoral base at the same time as he became a major shareholder of the Midland Railway Company. His was a vision of working-class representation rooted in respectful collaboration and philanthropic efforts by employers (ibid.).

Friendly society benefits were a cornerstone of this vision. The first delegate meeting of the society emphasized the respect and support of middle-class patrons through “promoting good relations between employers and employed, preventing strikes, and advocating arbitration for the settlement of disputes” (Gupta Reference Gupta1960: 18).

In the society’s 1875 report, its executive committee acknowledges that “influential friends of the society often give considerable donations as tokens of their support of the society. Hitherto these have been devoted entirely to the local benevolent funds” (ASRS 1875: 3). Through the expansion of its benefit features, the organization demonstrated its benevolence, drawing both financial support and elite recognition. The committee continues,

The adoption of voluntary benefit features was stimulated by cultural elements that far surpassed considerations of industrial development. Instead, the society’s friendly features demonstrated an organizational logic that symbolized complacency, cooperation, and collective self-help, in line with the preferences of governing elites.

In the USA, the first railroad union to successfully emerge was the Brotherhood of the Footboard, which formed in Michigan in 1863 in response to a railroad merger. Adopting the name Brotherhood of Locomotive Engineers (BLE) the following year, the combination identified its purpose with “win[ning] the good graces of the employers through elevating the character of its members and thus raising their efficiency as workmen” (Hostler Reference Hostler1955: 4). Disavowing the use of strikes, the BLE’s strategy anticipated that “the employer would be so well pleased with their work that he would of his own free will provide better recognition of labor and higher pay” (Hostler Reference Hostler1955: 4).

Indeed, the railroad Brotherhoods were exemplary of “labor fraternalism” (Weir Reference Weir1952: 62), a tradition of labor organizing that grew out of the work of fraternal societies. The society’s founders were active participants in the Freemasons, and the organization mimicked the societies’ hierarchy of subordinate, grand, and supreme lodges. Many of its early members were already paying into fraternals, as evidenced by funeral processions that often included representatives of both the Brotherhoods and fraternal associations (Stevens Reference Stevens1907; Taillon Reference Taillon1997).

Leaders of the BLE were similarly referred to in the fraternal language of grand masters, and they presided over a series of secret ritual practices. Alongside these practices, the Brotherhoods adopted the fraternal system of benefit provision. In 1866, the union initiated a widows, orphans, and disabled members fund, and this was to be followed by a mutual insurance fund in 1867.

The BLE would come to inspire a number of organizations known as the Railway Brotherhoods. Among these was the Brotherhood of Locomotive Firemen and Enginemen (BLF), which was initiated by lower-grade workers in Port Jervis, New York, in 1873. Like the BLE and the ASRS, Firemen records attest to the importance of benefits in legitimizing its operations. In the convention of 1876, Grand Master J. A. Leach holds that the association’s primary purpose is “to protect worthy brothers, and aid in the noble work of relieving suffering humanity” (BLF Proceedings 1876: 6). The formulation draws on benefits to emphasize the worthiness of membership and benign aims. The trade union’s motto, “benevolence, sobriety, and industry” similarly conjures the language of respectable voluntarism (BLF Proceedings 1874: 8).

Like the Railway Servants, the Firemen were in the habit of inviting respectable speakers to their public meetings. Their 1874 convention was graced with the presence of Joseph Brown, president of the Missouri Pacific Railroad and War Democratic Mayor of St. Louis. In his speech to the convention, Brown observes, “I notice by your constitution and bylaws that your organization…is not only charitable but moral in its tendencies.” To which the society’s Grand Master responds, “I also hope… that we have improved our condition as regards our respectability and standing before the public” (BLF Proceedings 1874: 46). In the following speech, Mayor of Buffalo Lewis P. Dayton, also a Democrat, states, “Yours is an institution formed for the mutual protection and assistance of its members, and as such is worthy to be classed among the many charitable institutions of the day… yours is an honorable calling” (ibid.: 112). And, in its 1875 convention, the organization declared that:

In both trade unions, the provision of benefits thus performed a vital cultural function – by mimicking friendly and fraternal societies, early railway unions signaled their compliance with elite preferences for a voluntarist ethic and vied for legitimacy and respectability in a legal environment that recognized working-class associations for mutual benefit. While institutional structure, racial and ethnic segregation, urbanization, and sectoral development fundamentally contributed to the formation of a conservative working-class identity among skilled white men, the legal sanctioning of exclusive benefit schemes guaranteed this identity its organizational manifestation.

The UK’s Legislative Shift: The railway servants embrace the state

The first signs of a diverging legal environment would come with the Hornby v. Close case of 1867. As a prototypical craft union organized around mutual benefit provision, the United Society of Boilermakers confidently took a member to court for lack of payment. Upon review of their funds, which had increasingly been devoted to strike support, the judge determined that the society was organized for illegal purposes. An initial blow for craft unions, the case prompted a Royal Commission investigation into trade unions that would presage the debates of the monumental Taff Vale case of 1901. The Commission’s majority report concluded that “facilities should be granted for such registration as will give to the unions capacity for rights and duties resembling in some degree that of corporations,” including, importantly, the ability for the trade union as an organization to be sued based on the actions of its members (House of Commons 1868: xxiv).

The far more influential Minority report, by contrast, held that trade unions should be given the status of friendly societies, noting: “the state should accord to trade unions bare legal recognition…In return for this recognition a guarantee of perfect publicity in their laws and in their expenditure would be enacted, but these would be in no way interfered with so long as they were clear from crime” (ibid.: xxix).

Consensus on the matter would not be reached until 1871, when the minority report position won their case. The Trade Union Act and Criminal Law Amendment Acts of 1871 and 1875 invested trade unions with equal rights as friendly societies, preserving their status as voluntary associations and freeing them from criminal prosecution for restraint of trade. As a result, “neither a strike, nor the sanctioning contributing to or assisting a strike, [was] illegal, not merely in a criminal sense, but in the sense of rendering an association unlawful” (Schloesser and Clark Reference Schloesser and Clark1912: 121). Thanks to the newfound distinction between trade unions and friendly societies, regulations on the latter were loosened – they no longer had to send along their rules to the chief registrar for approval, while trade unions had to register their rules on an annual basis (Davis Reference Davis1876). Nevertheless, the laws confirmed the status of trade unions as clubs or associations of individual members who could not be sued as legal entities before the law (Adams Reference Adams1902). At first glance, the Acts of 1871 and 1875 may seem like a convergence with the legal precedent in the USA, which already provided trade unions with legal status. By legitimating the use of funds for strike support, however, the acts represented a substantive divergence on the question of what the recognized functions of a trade unions could openly be.

This monumental decision coincided with a burgeoning crisis in the friendly society movement. As a result of government ambitions to regulate and monitor what had become powerful national bodies, an investigation into their operations was commissioned in 1872. The Friendly Societies Act of 1874 stipulated that the government would thenceforward circulate model forms of accounts, balance sheets, and valuations and ensure that tables of payments would be constructed and published. The Registrar was also granted the power to investigate any society accused of nearing dissolution (UK Parliament 1874). As a result of these investigations, persistent and pervasive insolvency among the societies was uncovered (Cordery 2003).

In response, friendly society leaders formed the National Conference of Friendly Societies (NCFS) to defend their interests. The NCFS would advance the voluntarist cause even as friendly society members grew wary of participation – in testimonies given before the Royal Commission on Provident Insurance in 1886 and the Royal Commission on the Poor Laws of 1895, working-class society members stress the need for state intervention to ensure receipt of their benefits (Brodie Reference Brodie2014; Gilbert Reference Gilbert1965; Treble Reference Treble1970). In one of many such testimonies, a gardener from Sleaford argues that the new generation of workers “would not go into the present societies of today. They do not do it, and they will not do it.” He continues, “From hearing such unfavourable reports about friendly societies, there have been some terrible revelations about them…I quite believe that in time all these voluntary societies would be entirely done away with. they would not be required at all” (House of Commons 1886: 1613).

Popular awareness of friendly society insolvency visibly shook the faith in the sustainability of voluntary organizations as a whole. In the 1880s, sales of Samuel Smiles’ bestselling book, Self Help, began to decline, as fears over the health of the empire began to take hold (House of Commons 1909; White Reference White1901). In the final quarter of the nineteenth century, British governing elites increasingly began to lose confidence in the ability of working-class thrift to compensate for the growing inequalities of industrial capitalism (Davies Reference Davies1997). As they expanded the scope of trade union organization, they also more actively intervened in the management of friendly societies.

Thus, avenues for strike mobilization were opened just as the possibilities for voluntarism narrowed. Equally exemplary of this effort was a loophole opened for compulsory employers’ insurance schemes with the Shop Clubs Act of 1902. The Act permitted compulsory employer’s benefits to compete with those of workers under strict circumstances. While the actual registration of compulsory employer’s clubs may have been limited, their legality shaped the organizational reasoning of trade union leaders (Melling Reference Melling1980).

Each of these developments rippled through the ASRS. In 1879 Michael Thomas Bass sold the Railway Gazette (Gupta Reference Gupta1960). With the launching of the Railway Review in 1880, the organization’s General Secretary Fred Evans attempted to transform the union from a friendly society into a “fighting union” (Gupta Reference Gupta1960: 33). In its rebranding, the ASRS advanced itself as “the only organisation free from official influences and patronage” (ASRS Reports 1880: 63). Emboldened by the legislation and free from Bass’s supervision, Evans began to gently distinguish the organization from a benefit society. His opening article for an August 1882 issue of the Railway Review insists:

In the next week’s issue, he continues:

In these speeches, the language of aggression and open class struggle contrast sharply with that of benevolence and respectability, which dominated earlier declarations.

In addition to distancing itself from friendly societies, the ASRS also exhibited intense discussions regarding proliferating employer’s insurance schemes. In short yet increasingly frequent accounts of meetings regarding the Great Western Railway Pension Fund, members complain:

In contrast to the tyranny of compulsory contributions to employer funds, ASRS members begin to “contend that if any compulsory provision has to be made it should be made by the state, and not left to employers of labour or anyone else” (ASRS Railway Review March 15 1889: 122). To counter employer’s funds, railway workers increasingly looked toward state regulation.

The events of the Taff Railway case would act as a microcosm of the broader relationship between repression, respectability, and voluntary benefits. In 1901, the Taff Vale Railway Companies sued the ASRS for damages perpetrated by its members during a strike. The judge interpreted the accusation in line with the majority report decision of 1867 – holding the union liable as a corporate entity. With the legitimacy of the trade union once again thrown into question, its leadership resorted to emphasizing its benefit functions.

In a 1902 Parliamentary debate radical Liberal Robert Reid insisted that a trade union’s “chief work is…that of conferring benefits, administering sick funds, pension funds, unemployed funds, widows’ funds, and so forth, on a very large scale” (UK Parliament 1902). MP for Leeds South John Walton held that trade union funds “represent the hard-earned savings of a large and most worthy section of the community, and they have been contributed in no small degree for the purpose of making provision against misfortune” (ibid.). And in 1906, Reid noted, “Between 1895–1904, 100 principal trade unions spent £16,060,000 of which only 14% was spent on dispute pay, the rest being all spent on benefits of various kinds” (ibid.).

This sort of defense was taken up by the ASRS’s own Parliamentary representative, Ramsay MacDonald. In a pamphlet on the dispute, he urges, “Trade unions are benefit societies, and though their industrial aspect is most important, their expenditure in relation to the unemployed and in subsidizing the aged, is one of the most striking features of the industrial history of the last half century” (MacDonald Reference MacDonald1903: 13).

The Trades Disputes Bill of 1906 restored the status of trade unions and consequently reopened alternative avenues for organization. With their legality and the accumulation of strike funds guaranteed, they were able to let go of insurance benefits, embrace state provision, and undertake a wider and more political role in British Society. By 1913, an observer declared, “The purely voluntary character of associative effort in Great Britain for mutual assurance is now a thing of the past. The state has stepped in” (Robinson Reference Robinson1913: 10). Thus, legal transformations in the late nineteenth and early century UK legitimated alternative organizational avenues for trade unions at the same time as they weakened the appeal of mutual benefit provision.

Persisting voluntarism in the USA: The brotherhoods commit to benefits

The legal environment looked very different for American trade unions. In the aftermath of the Civil War and up until the late nineteenth century, a wave of powerful conspiracy prosecutions were made against organized labor (Ernst Reference Ernst1995; Hattam Reference Hattam1993; Orren Reference Orren1991). Following the Haymarket Affair of 1886 – in which demonstrations for the 8-hour day ended in open fire from the police – courts consistently ruled that it was unlawful for “two or more persons to confederate and agree to deprive another of his liberty or property” (cited in Ernst Reference Ernst1995: 73). Unlike the Trades Union Acts of 1871 and 1875, this principle effectively rendered strikes and boycotts illegal during this period (Ernst Reference Ernst1995).

In the mid-1880s, the focus shifted from conspiracy to injunctions (Ernst Reference Ernst1995; Hattam Reference Hattam1993). Far from fragile associational clubs, governing elites perceived the trade unions of the late nineteenth century as powerful organized bodies capable of interfering not only in national markets but also in the political process, thereby threatening individual rights and market competition. With the introduction of the Sherman Anti-trust Act in 1890, trade unions were increasingly prosecuted as monopolistic “trusts” in restraint of free trade. While policymakers upheld the procedural rights of individual workers, they consistently denied substantive rights to unions – individuals could voluntarily associate, but, unless they incorporated, national associations were perceived as a threat (O’Brien Reference O’Brien1998; Orren Reference Orren1991). In a series of infamous labor cases, including the Danbury Hatter’s case and Gompers v. Buck’s Stove & Range Co., it was consistently held that strikes and boycotts unfairly restrained free trade. Just as before, trade unions could operate only so long as they pursued “respectable” objects.

Refusing to identify as either a corporation or a trust meant that American trade unions had to double down on their voluntary status. In its decades-long campaign to protect trade unions from injunctions under the Sherman Anti-trust Act, the AFL clung to voluntarism as a critical organizing tool. In his opening speech at the 1905 annual convention, AFL President Samuel Gompers noted:

While strikes and boycotts were continually outlawed, benefit provision only increased in legitimacy. American fraternal associations began to proliferate between the late 1860s and 1890s, reaching their peak after 1910. While only 78 fraternals formed before 1880, 490 were created between 1880 and 1901 alone (Cordery Reference Cordery, Gibaud, Lucassen, van der Lindon and Dreyfus1996). In November of 1886, 47 of the most significant societies, representing roughly 2.5 million members, combined to form the National Fraternal Congress (NFC) (Vondracek Reference Vondracek1972). In 1906, NFC member societies represented 91,434 lodges. By 1925, they reached their peak at 120,000 lodges around the country and over 30 million members – roughly one half of all adult males (Beito Reference Beito2000; Meyer Reference Meyer1901; Rosenweig Reference Rosenweig1977). American fraternals were not impervious to the actuarial crises of their British counterparts. In the 1920s, they entered their own prolonged period of crisis, and were soon overtaken by insurance companies in catering for workers. Indeed, their crisis would shortly precede the founding of the Congress of Industrial Organizations (CIO) and the rise of industrial unionism within the USA. During the critical policy conjuncture posed by the Progressive Era, however, their organizational form was in the midst of its rise.

Having been grouped as “benevolent” or “charitable” associations (Hardy Reference Hardy1908: 68), fraternals were excluded from any regulation relating to ordinary insurance companies until the mid-1880s. In 1885, Massachusetts was the first state to regulate the operations of fraternal societies, with Maine, Nebraska, New York, and Wisconsin following in subsequent years. In 1887 the NFC formed a committee to secure legislation protecting fraternal insurance. The bill that was proposed by the NFC in 1888 sought to establish uniform rules for the contribution rates and benefits paid across fraternal organizations. Throughout the 1890s fraternal organizations were preoccupied with “placing themselves on a perpetuating basis” (National Fraternal Congress 1886–96: 18, 61, 138), noting in 1896 that “it is the imperative duty of several societies to make at the earliest practical moment proper provision for meeting the inevitable increase in mortality by an adjustment of rates, so that the contribution shall be equally proportioned to the hazard of risk” (NFC 1896: 20). The congress developed a “mortality table” to guide other societies in 1898. As they centralized and systematized, they were increasingly incorporated and integrated into the insurance infrastructure.Footnote ³

Contemporary legal scholar Frederick Hampden Bacon observed:

Despite greater legitimacy and proliferating corporate status, the societies received little actual supervision or regulation. Unlike the Friendly Societies Acts, the Uniform Bill of 1893 made no requirement for a reserve fund and did little to assess the stability of the societies (Landis Reference Landis1900). Armed with legal protection and the ability to accumulate property, and facing little scrutiny, fraternal insurance organizations became the leading form of insurance among workers (Bacon Reference Bacon1917: 2; Witt Reference Witt2009). During this expansion, fraternals maintained their racial exclusivity: of the 200 largest fraternals in America at the turn of the century, roughly 2/3 excluded immigrants and racial minorities (Glenn Reference Glenn2001).

By 1911, eleven states had adopted uniform laws with rate tables and reserve requirements giving legal status to fraternal societies. By 1919, the number of states had increased to 40 (Witt Reference Witt2009). As the NFC Proceedings from 1892 noted, “From the insignificant beginning twenty years ago has grown a system of business exceeded in dimension by but few interests in the country. It began in a gracious spirit of beneficence; it outran its founders” (NFC 1892: 25).

The legal environment of American trade unions thus continued to outlaw their trade features while legitimizing fraternal insurance. The dynamic is made evident in the language of the 1914 Clayton Act – a modification of the Sherman Anti-Trust Act in which the AFL had gruelingly fought for exemptions for organized labor. The final Act held,

Just like Hunt’s decision of 1842, the Clayton Act thus was “a bill to legalize lawful conduct” (ibid.: 187) in which mutual benefit features played a leading part.

The history of labor law in the American railroad industry is indispensable to this broader story. Thanks to the industry’s enormous expansion throughout the 1870s, the number of railway workers grew dramatically. In response to a rising threat of unionization, employers in the industry increasingly made use of yellow-dog contracts that prevented workers from joining any trade-related association. During the late 1870s, laws were passed in New Jersey, Pennsylvania, and Delaware that threatened to fine or imprison any worker who abandoned his position on the job. During this period, the railway Brotherhoods were purely aiming to survive (Taillon Reference Taillon1997).

In their efforts at legitimation, society members regularly sought a position equal to that of fraternal benefit societies. In 1878, the Brotherhood’s General Secretary and magazine editor William Sayre urged, “If it is a crime for engineers to belong to a brotherhood, why not discharge them also for their relations with the Masonry, Odd Fellows, etc.?” (BLF Magazine 1878: 47–48). This desire to appear as a fraternal society became more pronounced with the Great Railroad Strike of 1877, which was violently suppressed by the National Guard, federal troops, and employer-hired militias.

Though Sayre publicly supported the strike, he oriented the organization squarely against strike tactics in the following years. Asked about the Firemen’s relationship to strikes in 1877, he responded, “No. To disregard the laws which govern our land? We again say No, a thousand times No…Benevolence being the principal object, it is obvious that we are organized to protect and not to infure [sic]” (BLF Magazine 1877: 345–46). Associate editor of the BLF Magazine and later socialist leader Eugene Debs, similarly declared that “A strike at present time signifies anarchy and revolution, and the one of but a few days ago will never be blotted from the records of memory” (ibid.: 362).

In 1879, the membership of the organization would vote to reject strike activity wholesale, and, at the 1880 convention, the Grand Master Frank Arnold reflected that the decision “has gained us the unlimited confidence of our employers, gained us the sympathy of the best classes of people” (BLF Magazine 1880: 334–35). In the opening speech of the 1882 convention, Chairman Thomas Harper states,

The same year honorary speaker Colonel W.E. McLean confesses, “I am pleased to learn that it is not among the aims and purposes of the brotherhood either to foster or encourage labor strikes” (ibid.: 17). In 1883, Debs wrote “strikes are the knives with which laborers cut their own throat.” And as late as 1884, he noted that “the impression that the brotherhood is a combination to influence wages, or labor, or anything of the kind is a mistaken idea, as the organization is a purely beneficient one” (cited in Taillon Reference Taillon1997: 404).

The value system represented by benefits also held other cultural connotations. The independence and hard work representative of manhood were, more specifically, attributes of white manhood. The firemen’s constitution identified its membership as “white born, of good moral character, sober and industrious, sound in body and limb, not less than 18 or more than 45 years of age, able to read and right in English” (BLF Proceedings 1892: 109). Their moral system wholeheartedly excluded women, African Americans, recent immigrants, and lower grade workers. Organization documents are brimming with overtly racist and derogatory language that echoes that of the fraternal orders they aimed to mimic.

Despite a brief period of radicalization leading up to 1886, the Brotherhoods would return to their strategy of respectability in its aftermath. After the failure of a long and bitter strike along the Chicago Burlington and Quincy railroad in 1888, the Firemen would participate in the construction of the 1888 Arbitration Act, which introduced voluntary arbitration for all labor disputes threatening to interrupt interstate commerce. In doing so, the organizations positioned itself as the cordial face of labor opposed to industrial disputes.

This tendency would become even more profound following the Pullman Strike of 1894. The strike resulted in the crushing of the progressive ARU. In 1895, an injunction was granted against Eugene Debs, who had left the Brotherhoods to become the ARU’s leader. In distinguishing themselves from the ARU, the Brotherhoods referenced their benefit over their strike features:

As insurance providers, the Brotherhoods would be praised by President Theodore Roosevelt for their promotion of the “faculty of individual initiative” (BLF Proceedings 1902: 26). In meetings with then secretary of state Richard Olney, they stressed the expulsion of thousands of members who were perceived to be in support of the Pullman strike, positioning the Brotherhood as a reliable partner for government negotiations (Tomlins Reference Tomlins1985).

The Erdman Act of 1898 would solidify this relationship. Even prior to the passing of the Act, a communication signed by the chiefs of the Brotherhoods supported its principles (Congressional Record vol 28, cited in Fisher Reference Fisher1922). In debates on the bill, then Commissioner of Labor Carroll D. Wright encouraged trade unions to take the opportunity to “dignify their bodies” through a policy which “places labor and capital on an equality as to the enforcement of contracts” – echoing the language of class compromise and respectability that prevailed in earlier decades (US Congress 1897: 2388). Defenders of the act explicitly argued that “a strike which would involve our railroad systems would be appalling,” and held that “this bill is designed to obviate such disaster” (ibid.: 2389). At the hearings, the Firemen sent a circular in which they urge a representative to “use your influence and utmost endeavors to have [the bill] passed” (ibid.: 2390).

In exchange for surrendering participation in mass strikes and representing workers on arbitration boards, the Brotherhoods obtained “a level of security and stability unprecedented for any national union until that time or until the New Deal era” (Taillon Reference Taillon1997: 434). Section 9 of the Act outlawed the use of yellow-dog contracts, prevented the blacklisting of unionized workers, and, notably, forbade employers from “require[ing] any employee or any person seeking employment, as a condition of such employment, to enter into a contract whereby such employee or applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes” (US Congress 1897: 2388). While the Erdman Act did not outlaw all employer insurance schemes, it did make compulsory membership in the schemes illegal at the same time as it legalized trade union membership. In this way, it actively protected the position of the Brotherhoods as benefit providers.

Legal boundaries, organizational fields, and trade union politics

In this paper, I have argued that organizational sociology, with its emphasis on the institutional promotion of organizational forms, offers crucial insights regarding the political orientation of labor movements. I have sought to demonstrate the importance of law in delineating legitimate and illegitimate forms of public association throughout the nineteenth and early twentieth centuries. Notably, I have argued that the regulation of friendly and fraternal mutual benefit societies was significant in shaping the organizational opportunities of trade unions: throughout much of the nineteenth century, trade unions in both the USA and the UK adopted exclusive craft benefits as a symbol of respectability and compliance. Toward the end of the century, the legal environment within which these movements operated shifted. UK legislators recognized the use of strikes and boycotts, closely monitored the solvency of friendly societies, and left an opening for compulsory employer benefit schemes, while American courts effectively prohibited strikes and boycotts through anti-trust injunctions and the infrastructure of voluntary arbitration, sanctioned the growth of fraternal benefit societies, and outlawed compulsory employer’s insurance. Thanks to their participation in party politics and position in crucial legislative developments, the countries’ major railway unions were decisive in promoting these shifts.

These findings bear implications for research on trade union strategies, which overwhelmingly centers on management practices, sectoral development, and labor market structure in explaining trade union orientation toward public benefits (Haydu Reference Haydu1991; Marks Reference Marks2014). They point to the importance of organizational environment in shaping the strategic reasoning of trade unions. Additionally, the findings build on existing analyses of law and labor that emphasize the legal constraints to trade union organizing (Ernst Reference Ernst1995; Forbath Reference Forbath1991; Hattam Reference Hattam1993; Orren Reference Orren1991; Tomlins Reference Tomlins1985). To understand the form trade union organizing took, I contribute an account of the legal opportunities put before trade union leaders. Finally, the findings engage a longstanding literature on class formation, which emphasizes the importance of early democratization, ethnic and racial discrimination, patterns of industrialization, and the political evolution of the USA (Bridges Reference Bridges, Katznelson and Zolberg1986; Davis Reference Davis1980; Dawley Reference Dawley2000; Katznelson and Zolberg Reference Katznelson and Zolberg1986; Roediger Reference Roediger1999). These factors certainly contributed toward the emergence of a deeply conservative, racist, and patriarchal tradition within the American labor movement, embodied most clearly in the culture and practices of nineteenth-century craft unions. But viewing the evolution of this tradition through the lens of organizational forms suggests that the victory of this craft tradition, complete with its commitment to insurance over state benefits, was not inevitable during the Progressive Era. Though alternative forms of class sentiment emerged across the US labor movement, they were not granted organizational legitimacy. As a result, the research indicates that trade union strategies are not only a reflection of class sentiments held by workers or industrial conditions. Rather, trade unions are influenced by organizational logics of legitimacy that lead them to embrace organizational forms advocated by governing elites. The state, then, is directly implicated in the form that trade union politics take.