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Labor, the Courts, and Section 7(A)
Published online by Cambridge University Press: 02 September 2013
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Any economic system, whether systematic or not, involves a particular set of relationships between men and things and between men and men, and so needs the support of a corresponding legal and political system. One naturally expects political and legal change to follow social and economic revolutions. Perhaps that is the New Deal—a political and legal revolution to meet the demands of a new economic era. But whatever the situation may require to the mind of the Executive and Congress, there remains the question whether any particular legislative project is allowable under the Constitution. For our government, this matter of bringing law into conformity with economics meets with peculiar difficulties. It is not enough to secure rights by legislative enactment. Such guarantees must run the gauntlet first of administrative interpretation and ultimately of the courts. If one may judge from newspaper headlines, there is no surer way to bring our rights into controversy than to embody them in a statute.
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- Copyright © American Political Science Association 1934
References
1 The traditional non-partisan political policy was reaffirmed at the 54th annual convention at San Francisco this year. Resolutions calling for an independent labor party were offered and their proponents claim that had they been submitted and considered on their merits, rather than smothered by parliamentary tactics, they would have received around 7,000 votes.
2 Report of the Executive Council of the American Federation of Labor, October 1, 1934, p. 47 ffGoogle Scholar.
3 American Steel Foundries v. Tri-City Council, 257 U.S. 184, 289. This statement is especially significant in view of the fact that no one did so much to establish and reinforce “government by injunction” as Mr. Taft. See my article, “The Labor Decisions of Chief Justice Taft,” 78 University of Pennsylvania Law Review, March 1930Google Scholar.
4 Individual and Collective Bargaining under the N.I.R.A., November, 1933. National Industral Conference Board, Inc.
5 Individual and Collective Bargaining in May, 1934, National Industrial Conference Board, Inc.
6 This view is expressed in an article, “Effects of the Recovery Act upon Labor Organization,” by ProfessorMcCabe, D. A., which appears in the Quarterly Journal of Economics for November, 1934Google Scholar.
7 N.Y. Times, September 5, 1933.
8 Ibid., August 24, 1933.
9 Ibid., October 31, 1933.
10 N.R.A., Release No. 3125, February 4, 1934.
11 In re Denver Tramway Corp. (N.L.B. case no. 149). Release no. 3589, March 3, 1934.
12 Administrative Order, No. X–11, March 26, 1934.
13 In re Houde Engineering Corp. (N.L.R.B., Release 141, September 1, 1934.)
14 On September 11, the Association issued a statement recommending that employers disregard the Board's ruling and continue “to abide by the long-standing and authoritative interpretations upholding the right of minority groups to deal with their employers … until competent judicial authority has declared otherwise.”
15 Report of the Executive Council of the American Federation of Labor, October 1, 1934, p. 75Google Scholar. “Workers who joined unions,” the Report continues, “in good faith … found themselves dismissed for no other reason than that they had accepted, at face value, the promises contained in the law; company unions were created by employers to prevent the growth of real unions, and to forestall real collective bargaining. Agencies set up by the N.R.A. for the enforcement of Section 7(a) were either unwilling or unable to enforce the law, or delayed so long in its enforcement that unions concerned were weakened and even destroyed, and faith in this portion of the Act lost.”
16 In re Houde Engineering Corp. (N.L.R.B., Release 141, September 1, 1934).
17 Dorchy v. Kansas, 272 U.S. 306 at 311 (1926).
18 Adkins v. Children's Hospital, 261 U.S. 525.
19 291 U.S. 502 (1934).
20 Ibid. at 537. On November 5, the views herein expressed gained additional support when a unanimous bench upheld the price-fixing provisions in the New York State milk control act in a test case brought by the Hegeman Farms Corporation. Justice Sutherland concurred in the decision, only implying that there were certain details of the opinion which he did not approve. See N. Y. Times, Nov. 6, 1934.
21 Adair v. United States, 208 U.S. 161 (1908).
22 Coppage v. Kansas, 236 U.S. 1 (1915).
23 Hitchman Coal and Coke Co. v. Mitchell, 245 U.S. 229 (1917).
24 Arizona, California, Colorado, Idaho, Illinois, Indiana, Massachusetts, Minnesota, Ohio, Oregon, Pennsylvania, and Utah.
25 Administrative Order No. X–11, March 26, 1934.
26 Coppage v. Kansas, 236 U.S. 1, at 39–40 (1915).
27 Texas and New Orleans Ry. Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 348, at 570–571 (1930).
28 N.Y. Times, August 24, 1933.
29 281 U.S. 548 at 568.
30 The former prohibits “interference, influence, or coercion” in the designation of representatives, whereas the latter forbids “interference, restraint, or coercion.”
31 Editorial in New Republic, September 4, 1934. See also in re Edward G. Budd Mfg. Co. (N.L.B.), Release No. 2283, December 15, 1933; In re S. Dressner & Son, Chicago (N.L.B. case 66), Release 3041, January 31, 1934; and In re Cochran Shoe Co. (N.L.B. case no. 170), Release 3315, February 16, 1934.
32 In re Houde Engineering Corp. (N.L.R.B., Release 141, September 1, 1934).
33 Attorney-General Cummings announced on October 17 that the Department of Justice would not proceed against the company on the basis of the existing record. He also expressed doubt whether the case could be made to “stick” in court, N.Y. Times, October 18, 1934.
34 Hitchman Coal and Coke Co. v. Mitchell, 245 U.S. 229, at 250–251 (1917).
35 Coppage v. Kansas, 236 U.S. 1, at 16–17 (1915).
36 N.Y. Times, October 17, 1934.
37 This view apparently has the support of the Administration. It is, as General Johnson has said, “a theme which many of us here entertain.” Release No. 602, September 1, 1933.
38 The membership of the Executive Council was, it is true, enlarged to eighteen, but the present composition is by no means reassuring to those who favor general reorganization along industrial or vertical lines. See, in this connection, Clement, Travers, “The A. F. of L. Faces a Fact,” Nation, October 24, 1934Google Scholar.
39 There is no doubt that the present purpose is to realize the opportunities which N.R.A. offers. The San Francisco convention adopted an elaborate policy with respect to N.R.A. The keynote of this policy is that labor must be made an active partner in the supposed partnership of government, industry, and labor. In the mind of labor, this especially required representation on the code authorities, enforcement of Section 7(a), and the outlawing of company unions. Report of the Executive Council of the A. F. of L., 54th Annual Convention, October 1, 1984, p. 47 ff.