Introduction This lengthy discussion began with an unexpected discovery of mine during research in the summer of 1994 at the National Archives. It evenually included Sanford Jacoby, Roger Horowitz, Mel Dubofsky, Chris Tomlins and Howell Harris. It uncovered some of the issues and debates surrounding the U.S. National Labor Relations Board which was created by Congress in 1935, but only upheld by the Supreme Court in the spring of 1937. Seth Wigderson, H-labor Moderator +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Subject: NLRB Decides To Not Enforce Its Own Order
I recently returned from a highly productive research trip to the National Labor Relations Board records at the Suitland Research Center. So, yes - H-Labor is now home again, and yes - researchers should check ahead this summer if they plan to go to DC. Records are in the process of being moved to the new National Archives facility in College Park, Maryland.
To return to my query. As H-Labor subscribers may remember, I am studying the 1937 Lewiston-Auburn shoe strike. Although the union (United Shoe Workers of America-CIO) did represent a majority of workers at one point, the companies were able to delay and help create a pro-company "independent" union and successfully thwart and delay the NLRB even after the Union had been certified the bargaining agent and the companies had manifestly refused to bargain. This dragged on for years. Finally, on February 27, 1940, the file contains this lone laconic note.
My question is this. Is anyone familiar with this sort of Board action? Has anyone ever run across a similar circumstance of the Board saying, in effect, the workers were right, the employers were wrong, but it is too late and we may not win in court, so we will not enforce our own order.
+++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ Subject: Jacoby on later NLRB policy
Thanx to Sanford Jacoby for this very helpful response. SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ TheNLRB's enforcement of 8a (after Taft-Hartley 8a2) violations dropped off considerably as a result of political pressure on the board. Enforcement first eased up around 1946, in anticipation of statutory changes. The board moved further in this direction after TaftHartley, which itself required the NLRB not to discriminate between affiliated and unaffiliated (independent) unions. Because the NLRB already permitted an affiliated union to appear on a ballot if the employer did not "dominate" it but only "interfered" with it and had ceased such interference, it now extended this procedure to unaffliated unions A brief discussion can be foundin Jacoby and Verma, "Enterprise unions," Industrial Relations, 1992. Also see Millis and Brown's From Wagner to Taft Hartley. S.M. Jacoby <IDR0SMJ@MVS.OAC.UCLA.EDU>
Harry A. Mills. From the Wagner Act to Taft-Hartley: a study of national labor policy and labor relations. Chicago: University of Chicago Pres, 1950.
Sanford Jacoby and Anil Verma. Enterprise Unions in the U.S. (A symposium: Labor market institutions and the future rule of unions) Industrial Relations, 1992, v.31, n1, Winter, pp. 137-158
Labor Management Relations Act, 1947 [Taft-Hartley] 8(a)(2) It shall be an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.
+++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ Subject: NLRB in Sioux City
Many thanx to Roger Horowitz for this valuable contribution. SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Seth-in similar research that I did on a plant occupation by packinghouse
workers in Sioux City, Iowa in 1938, I found that the NLRB both found that
the union represented a majority of employees and had violated the Wagner
Act. Hence, under the Fansteel decision, it upheld the dismissal of 165
workers even though the company had not bargained in good faith. I have
an article on this. See: "It Wasn't a Time to Compromise: Organizing
Sioux City's Packinghouses, 1937-1942," in Annals of Iowa 50 (Fall
1989/Winter 1990), 241-268.
Though I don't discuss the larger issue in the article, the NLRB's
actions reflected important shifts in state regulation of labor between
1937 and 1940. The best source on this change is James Gross two books on
the NLRB, and to a certain extent Chris Tomlins, The State and the Unions.
The composition of the NLRB shifts in the late 1930s as the AFL and a more
conservative Congress attack it as being an arm of the CIO. For those who
really want to delve into this subject, check out the William Leiserson
papers at the State Historical Society of Wisconsin, as he is an important
figure in this shift. Other people on this list who know the sources on
state/legal history may also have additional information on this point.
Roger Horowitz, Hagley Museum and Library, RH@STRAUSS.UDEL.EDU
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Subject: Mel Has A Question on Fansteel
Many thanx to Mel Dubofsky for raising this question. SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
I am little puzzled by Roger's chronology and reading of the Fanssteel decision and its meaning. The SC decision occurs well after the 1938 Sioux City strike Roger refers to. Moreover, although in Fansteel the Court found sit-down strike s illegal, they approved the NLRB's order Fansteel must reinstate strikers not guilty of criminal action. The court agreed with the NLRB that Fansteel had en- gaged in unfair labor practices and must pay a price for them. Actually, a quit e complicated ruling. Not having read Roger's article, am I to understand that by the time the NLRB issued its decision, the Supreme Court had ruled in Fan- steel and that the NLRB also found that the union, not management, had engaged in unfair (illegal) practices? If so much time passed between strike and NLRB decision, the decision could not have had too much effect. For more on the shif t in the NLRB's approach and also labor relations jurisprudence, c. 1937-41, see the relevant pages in my new book, THE STATE AND LABOR IN MODERN AMERICA.
Melvyn Dubofsky <DUBOF@BINGVMB> +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Subject: Horowitz responds on Fansteel
Many thanx to Roger Horowitz for continuing the discussion. SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Mel Dubofsky's question concerns both interpretive issues of the effect of state regulation on labor in the New Deal and the specifics of Sioux City strike. To take the second point first. The first NLRB ruling in the Sioux City case was by the Trial Examiner, who held in January 1939 (before the Fansteel ruling), that the company (Swift) had engaged in an unfair labor practice by refusing to negotiate with a union that represented a majority of employees and instead negotiating with a company-dominated union (the Employees Security League). The evidence was union membership cards signed by 65% of Swift's employees (btw, all the membership cards were in the NLRB case files). On that basis, the trial examiner ordered Swift to rehire all the workers. In the spring of 1940, the NLRB itself ruled on the case -- that is, well after the Fansteel ruling. It found that Swift had engaged in an unfair labor practice by favoring the ESL, but also that the union which engaged in the plant occupation had exceeded the bounds of permissable union behavior.The Board also found, somewhat disingenuously, that the CIO no longer represented a majority of Swift's employees in Sioux City. Hence it overturned the Trial Examiner's ruling, and absolved Swift of responsibility to rehire the strikers or to negotiate with the CIO. I think the evidence supports arguments made by Karl Klare in his classic articles a few years ago how the Fansteel decision began to move the NLRB to constrain more militant forms of union behavior. By engaging in an illegal strike, the Sioux City Swift union lost the protection of the National Labor Relations Act, even though the sit-down strike was not prohibited at the time Swift workers engaged in it. The difference between the rulings of the Trial Examiner and the NLRB reflect the new rules on union behavior which Fansteel entailed -- in the first ruling, the Trial Examiner was not bound to consider the strike itself a factor in his decision. By the time the issue made it to the national NLRB, the Fansteel ruling made it necessary to evaluate the union's reponse to the unfair labor practice in determination of legal remedy. This all relates to the first issue -- the effect of the state on labor organizing in the New Deal. In his book Professor Dubofsky considers Fansteel an example of "the judiciary's antipathy toward militant labor" but also warns "We should not make too much of the Fansteel decision," because the NLRB continued to be a tremendous asset for labor (163-164). We do need to be careful not to assume that Fansteel led inexorably to Taft-Hartley. But it seems to be that the larger issue is how Fansteel established a critical legal precedent that access to the protections of the Wagner Act was contingent on union obeying the rules laid down by the courts and the NLRB. The decision did more than show attitudes by the judiciary. It prohibited further use of labor's key weapon in the decisive General Motors strike (and many other labor struggles in 1937 and 1938), and subsequently influenced the application of the Wagner Act in many other contexts. Certainly the coercive approach taken by the National War Labor Board and Taft-Hartley owed, in a procedural sense, a great deal to the Fansteel ruling, as unions had to obey an increasingly stricter set of rules to receive protection from the state.
Roger Horowitz, Hagley Museum and Library RH@STRAUSS.UDEL.EDU
+++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ Subject: Further Discussion of NLRB and Fansteel
Thanx to Mel Dubofsky for continuing the public discussion with Roger Horowitz on Fansteel and Swift. Mel also raises an interesting issue of formality and informality on this list. It reminds me of the character in "Who's Afraid of Virginia Woolf?" who complains of a bad case of "AbMAPhd ." SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Thanks to Roger for the clarification and the additional information. Having that before me, I still think that Roger makes too much of Fansteel. More im- portant than the ruling was the shift in the political balance of power reflec- ted in the emerging Republican-Southern Democratic congressional coalition, the Smith Committee investigation of the NLRB, and FDR's recomposition of the NLRB between 1939 and 1941. The Board that subsequently overruled the Trial Examiner had already begun to change NLRB policy and did not Fansteel to make its ruling Congress, moreover, had already declared by resolution that sit-downs were in violation of public policy and also illegal. One could say that the Justices were responding to existing political realities and not innovating new legal do ctrines or concepts. A final point, the Swift case shows how delay works to the advantage of employers under NLRB rulings. By the time, the Board itself rules the union has lost its members.
And a matter of manners and courtesy: on this relatively informal list, can we not agree to drop professorial honorifics or titles? Melvyn Dubofsky <DUBOF@BINGVMB> +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Subject: Tomlins Sheds Light on a Murky Era
Many thanx to Chris Tomlins for this very helpful post. As is often the case, I feel the direction of my project changing as I work on it. I will have to go back to the books and my notes and will prepare a response. Seth Wigderson +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Re Seth's inquiry:
The note in the NLRB's Lewiston-Auburn shoe case file does not seem to me unusual, particularly given its timing. Resolution of the case occurs at the height of the internal "Board Wars" that got fully under way with Roosevelt's appointment of William Leiserson to succeed D.W.Smith on the Board. (Indeed the date of the memo places the resolution of the case almost exactly at the point of maximum dispute and disagreement between E.S. Smith, Madden and Leiserson). Leiserson made a central part of his "clean up then NLRB" mission the clearling away of many "balled-up" (as he put it) cases that were formally pending action or enforcement but stalled due to employer obduracy, AFL or CIO objection, and/or procedural dispute within the Board. He did so in the name of "practical" industrial relations, and in particular in opposition to Smith's "utopian" championing of a broad and aggressive (and determinative) role for the NLRB. (Madden, it should be stressed, had an independent position, and though he tended to side with Smith more than Leiserson the Board at this time was pulling in three separate directions).
It is more than likely that, like many others that incurred Leiserson's wrath, this case was one where an employer was being accused of Section 8 (unfair labor practice) violations arising in the course of a dispute over the outcome of a Section 9 (representation) proceeding that was itself the object of disagreement on the Board over the extent to which its determination of the bargaining unit, characterization of an "independent" union, and/or characterization of employer behavior were all interfering with creation of orderly bargaining practices and structures, and with routinization of its own procedures. For Leiserson, the Board's business was pursuit of structures/practices according to criteria of practical industrial relations: all the topics of dispute between himself and the other members (unit determination, bargaining behavior, employer roles in elections etc) were categories in which the major ideological fights over the character of industrial relations and the role of the NLRB (and of legal enforcement) in the creation of appropriate structures and practices of collective bargaining were being waged. For a good 15 months after his appoointment Leiserson campaigned to have numbers of bogged-down cases summarily resolved or dismissed and Board operating rules revised (this process accelerated after Millis replaced Madden, creating a stable "practical IR" majority).
An earlier post mentioned my work on all this and Jim Gross's. I tried to cover the contours of what was going on internally in Chap.s 5&6 of *The State and the Unions* and to relate it to wider themes in law and public policy. Jim Gross's work is peerless on the politics of the formation and administration of labor relations policy during the same period. There is a lot of other good work on all this now that may offer different/additional slants. There is in any case a voluminous primary record of internal discussion and disputation that can be traced both through the NLRB's administrative records and through specific case files, which (during the 1936-41 period) tend to contain copious internal memoranda.
It seems to me that Seth's case offers an extremely useful means to bring discussion of the point-of-production fight into direct contact with the DC fighting (within Congress and within the agency) over federal labor policy in a most productive way and at a key point in the history of the evolution of labor relations law and procedure. It is, literally, a "case history" that can test out the extent and limits of the NLRB's effectiveness during what is widely regarded as its golden age.
Chris Tomlins <clt@MERLE.ACNS.NWU.EDU> +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Subject: Howell Harris's NLRB contribution(s)
Howell Harris sends a lengthy and very packed post, bursting with ideas. Thanx much SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Thanks a lot to Roger Horowitz and Seth for provoking this, and to Mel and Chris for keeping it running...
I've just been working through NLRB case-files myself, and think that one of the many useful things coming out of this discussion is the need to keep the NLRB's impact/effectiveness in perspective-- Bob Zieger's work on the Pulp & Paper Workers in Covington, KY, Dan Nelson's work on the Rubber Workers in Gadsden, and Hodges' book on the Southern Cotton Textile Industry (just to name 3 that spring to mind, largely because the offprints or books are staring at me) should remind us that the *utility* even of a *favorable* NLRB ruling, even at the high point of its pro-CIO / pro-labor activism, and before the judicial/political "corrections" of 1938/9- that Mel and Chris emphasize, was often very limited.
Thus, too great attention to the *declaration* of law and public policy by the Board may be a bit misleading for simple barefoot labor historians. One of the problems, though, is that the Board files may be the fullest (and certainly most accessible) sources one has available. *Especially* in cases where delay and employer obstruction diluted or negated the impact of an NLRB ruling, there may be almost no other trace of a failed organizing drive. If the local press (general and labor) doesn't comment--or, in the latter case, maybe doesn't exist in a small town or low union density state--one may be stuck for other information, esp. about what happened *after* a ruling.
Here's a brief digest as an example: Jan. 1936 "my" Metal Manufacturers Association provokes 3 bitter strikes to destroy the union strongholds within its territory, the Phila. metal trades--c.50/60,000 workers and, through the end of 1935, just *one* union contract (at Philco, though, the biggest metal trades employer in the city, and biggest radio company in the US, so it's an important exception!!) There's a federal labor union with 100% membership at a mid-sized (c.200 workers) agricultural equipment firm, some informal closed shops (for molders only) at 7 small foundries, some informal union shops at 7 tool-and-die jobbers organized by James Matles's Machine, Tool & Foundry Workers. (Hence my earlier query). That, plus the much larger FLU at Westinghouse's South Philly works (c.3,000 employees) whose status at the time is unclear, represented the extent of post-NRA labor organization.
Anyway, my guys decide the time is ripe to get rid of the exceptions, make a few examples. The NIRA's gone, the Wagner Act isn't taken seriously, there's optimism about a Roosevelt defeat in '36, there's ample unemployment, it's winter, the MTFWU's merger talks with the IAM are getting nowhere, but if they get *some*where it'll be more formidable...
What gets into the public record about this? (1) The tool & die shops: zero in NLRB--not in interstate commerce. US Conciliation Service files, though, are a goldmine. (2) The ag. implement works--S.L. Allen & Co. becomes Case No. C-60, 1 NLRB 714-29. *As soon as* the local AFL organizer realizes there's going to be an attempt to break the strike (strikers had been sent individual dismissal letters, foremen had been attempting persuasion) he files a ULP charge-- refusal to bargain / coercion etc. This is even before active strikebreaking begins.
The NLRB, then, moves *quickly*. Hearings are ordered within days of the company's response (which mostly consists of the "boilerplate brief"--formalistic constitutional argument--plus denials of the stated "facts"). They take place while the wounds are still fresh on witnesses' faces (the strikebreaking turned bloody, with imported NMTA thugs).
The result: TOTAL VICTORY-- the company's ordered to dismiss strikebreakers, reinstate strikers-- all who can't be placed *immediately* to be on a preferential list.
So the timetable is: mid-Jan. 1936 strike; early Feb. complaint AND strikebreaking begins; early March hearing; mid-May ruling. And, the last detail, mid-June the strike collapses and about a third of the strikers are taken back "as individuals."
Then, nothing--exc. fruitless attempts by the USCS to rescue something from a complete disaster. For obvious reasons that Jim Gross, Peter Irons have told us all about, neither the NLRB nor the AFL made any attempt to have the order enforced--the former because of its legal strategy of concentrating on a handful of picked, carefully-managed test cases; the latter because it would have been a waste of time and money until after *Jones & Laughlin*, and in any case who's going to give a damn about a washed-up FLU?
8 May 1937, however, the former shop committee (none rehired) request that the company restore recognition / recommence bargaining, in line with the year-old order. (After *J&L*, that is). They get the predictable dusty answer. They go to the Board. The Board petitions for enforcement in the IIId Circuit in September '37, i.e. when the economy's on the way down the tubes.
In its response, the company states: that of the 165 production workers it employed in Jan. 36,
"5 were night watchmen, non producers who did not strike; 7 have died; 65 have been reinstated; 48 ... have obtained regular and substantially equivalent employment
elsewhere; 15 failed to reapply for work; 19 committed violence against persons and/or property in carrying on the
strike; only 7 of these, however, have been refused re-employment solely on this ground; 15 are unemployable by reason of age and bad health, for which reason(s)
their ability to work would not justify their employment or retention. Of this number, 4 are now pensioners. 4 are unemployed."
Finally, on 12 Jan. 1938 the issue's settled by a consent decree. The company's ordered to cease and desist from its ULPs, to bargain collectively, to post notices, and to offer re-employment ONLY to the 4 men to whom it had no objection. It's clear that the order to bargain is a bit of a formality; reemployment, promise to cease & desist, and posting notices are the heart of the decree. There's not actually a union left with which to bargain.
And that's almost the end of the story. The local labor press is unhelpful about implementation, if any. AFL records on FLUs don't seem to be much better. NLRB records end with the decree. All that I've found elsewhere is a complaint to the USCS in 1940 by a guy who wasn't one of the lucky 4 but claimed to have committed no violence, etc.
So what do we make of this? Was "justice" finally done? Or, on a small, failed strike, and for a union gone cold in the ground, was the NLRB, even in early '38, realistically unprepared to waste much energy? Prepared to settle for formal compliance by the employer / reemployment of the 4 to whom it had no objections, to save administrative / legal resources? This is my reading, at any rate.
Don't get me wrong: I'm not trying to marginalize the NLRB. Availability of the NLRB was absolutely central to the AFL's self-defense strategy during the strike; the Wagner Act affected the employer's behavior (e.g. bargaining to an impasse, keeping verbatim notes of session after fruitless session, and provoking a walkout, thinking that'd protect vs. accusation of Refusal to Bargain); and, *AFTER* the La Follette Committee's investigation of the MMA in Dec. 36-Jan. 37 (a clear response to the unenforceable NLRB order) and *J&L*, individual employer and employer association behavior DID change in the direction of compliance / legality.
But if what we're interested in is e.g the role of `the state' in legitimizing the labor movement, or helping it on its way, we have to look a lot further than the NLRB and the fed. courts. In the cases I'm interested in, I'd give almost as much weight to the La Follette Committee as to the NLRB, maybe more--it had the power to intervene decisively, which the NLRB lacked, and it exercized it at a time that mattered (in other words, Auerbach was right), at the peak of the self-organization / sitdown era.
I'd want to give a few cheers for federal and state mediation services, too, playing a valuable supporting role (esp. in the many everyday conflict situations to which the NLRB did not apply, before or after *J&L*) in assisting *both* parties to bargaining relationships to learn the rules of a new game, and esp. in getting one side (reluctant employers) to the table in the first place.
I'd want to count in the `local state' too--e.g. a Phila. Mayor (maverick Republican, La Guardia-esque) who set up a Labor Board with tripartite representation, but only incl. "responsible"/"liberal" employers, to take the place of the defunct Regional Labor Board... who, in the Allen strike, intervened personally with the company to try to get them to stay their hand... who ordered the Health & Fire Depts. to prevent the quartering of strikebreakers within the plant... who ordered the police to stop convoying strikebreakers, and to permit peaceful mass picketing... who made the Hosiery Workers' attorney his City Solicitor (with a large role in mediation)... who passed a city ordnance withdrawing licences from `detective agencies' employing ex-cons... who sent in the police to evict such strikebreakers from factories... who collaborated with the La Follette committee to expose `unacceptable' practices by local employers... who required the police to do nothing in the 1937 Exide sit-down, 7 weeks long, finally settled by his Labor Board on terms which included that the final vote on acceptance of a permanent agreement must be taken by the workers *at their place of work* so that they could resume the sit-down if they wanted. That's a whole lot of interventions, very immediate, very direct, their effects very tangible. No fancy doctrines at stake, just good ol' democratic political responsiveness in the Popular Front period. (Not that one normally thinks of the Pop. Front as including many Republicans...)
I wouldn't want to leave the state (qua Pennsylvania) out either-- e.g. in the Allen strike, after it becomes clear that the Philly cops aren't going to do their usual fine job, a company executive who's a Maj. in the Pa. National Guard attempts to convoy strikebreakers behind the protection of his uniform. A phonecall to Harrisburg--the Earle admin. is Pa.'s first Democratic one in God knows how long--stops that.
While the Wagner Act's fate is undecided, Pa.'s "little New deal" is being enacted, incl. restrictions on employment agencies dealing in strikebreakers... on carrying of arms by industrial police... on issuance of injunctions by state courts... and there's the "little Wagner act" too, reaching the parts which no-one at the time expected a federal law to be able to reach. More tangibly, there's unemployment insurance and relief policies-- e.g. granting strikers unemployment benefits, after 2x the normal waiting period, but with no questions asked... and local employment service policy-- refusing to make referrals (or to require an unemployed person to take an available job at) any company that (a) requires workers to join a company union or refrain from joining a bona fide labor organization... (b) has a strike on... (c) doesn't pay prevailing wages [=union rates, by normal Davis-Bacon standards].
So what I'm impressed by, looking at the 30s, is (a) the extraordinary variety of `packages' of local and state responses to labor on offer, depending on the jurisdiction, and (b) the development, in at least some jurisdictions, of extraordinarily useful, practical, pro-labor commitments, not very durable (Pa.'s began to be scaled back after 1938 too) but complementing fed. policy in important ways.
If we're interested in `the law' as something which legitimizes & adds confidence to the labor movement, I don't think we can afford to ignore these sorts of undramatic public policy developments. If we're interested in it as something which affects behavior immediately and concretely, I think we've even less justification to concentrate as much as we have over the past dozen years or so on the NLRB alone. The sort of superb politico-administrative history (and, in Chris's case, doctrinal exegesis) that Chris and James Gross or Peter Irons have carried out has helped us understand the development of the Board as an institution, and its policies. But I don't think that any further concentration, critical or otherwise, on the Board alone will get us very far with explaining what happened, what changed, in and for the wider labor movement at the time.
Gone on too long, but a couple more examples:
--in the triumph of the UE at RCA in Camden (and if you want to appreciate the importance of the local state, cf. Philly and Camden, Pa. & NJ), the NLRB ruling in the '36 representation election mattered. [The Board certified the UE as excl. b.a. despite the fact that it only got 3,000 votes out of c.10,000 eligible-- because it got all but about 60 of the votes cast. Company & company union strategy had been to boycott the poll, thinking thereby to invalidate it]. That gave the UE cause confidence and legitimacy-- but to win recognition took months of "industrial guerrilla warfare" (Matles) and hammering away at the loyalty of company union members, often on a one-to-one basis.
And there's a great story in *People's Press* about a Democrat election rally in Phila. [which registered an enormous increase in electoral participation 1932-36, and a phenomenal REP > DEM swing] where the RCA company union contingent in the parade suddenly start ripping off their green badges in an apparently-spontaneous realisation that one can't be *both* a pro-New Deal Democrat *and* a company union member at the same time. So our story about labor and politics in the New Deal has to include the mobilizing effects of democratic/Democratic electoral politics, too.
Finally, after *J&L* the company sees sense, recognizes UE, starts negotiating. How big a % of the behavioral change do we trace back to the NLRB ruling?
--the Westinghouse S. Phila. local wins official recognition in '37 in a consent election, but that merely formalizes a status that's well established on the ground. As people may know, Westinghouse held off from signing a contract, nationally or locally, until after a pathbreaking NLRB case in 1940 deciding that this was required to fulfil the duty to bargain. Does that mean there was no bargaining from '37 to '40? Like hell it does. There's everything except a written contract, and UE pulls frequent what it calls `disciplinary' actions when the company violates its conception of their unwritten agreement.
--the UE loses its first representation election in April '38 at the Phila. GE plant. No evidence of employer ULPs-- rather, a failed organizing attempt. Matles recognizes the errors afterwards: attempt to organize the plant from the outside, because there's actually a deal of loyalty to the ex-company union, insecurity about change during the recession, burgeoning suspicion about UE because of the Communist issue. So, lacking an organization inside the plant, and under pressure from the `independents' [who sprung the representation election on them], the UE attempts to use the election campaign to win members over. Fails. Matles recognizes: the purpose of a representation election is not to win support, it's to impress the employer with the support you've already got. If you're not established within the shop, you might as well not bother.
In a sense, the NLRB is involved in all three cases, all important ones too-- RCA with up to 12K employees... Westinghouse 3-4... GE 2-3, and the failure to win recognition there was a big obstacle to UE's claim for corp.-wide bargaining. But in "telling stories" about them, and explaining what's going on on the ground, I think it's a bit marginal as compared with the other things I mentioned. (i.e. Too much legal history makes me start coming over all grass-roots and rank-and-file).
Just one more thought before closing. There's a GREAT case sitting for someone to anatomize (and, as I'm 4,000 miles away and moving on from this area I offer it for free). Heintz Mfg. Co., C-1316, decided 26 June 1940. There's a huge informal file, massive hearing transcipt. Very messy story-- an FLU at this c.700 employee metal press shop from Aug. 33... informal relationship, but quite good [tho few bargaining gains]... '37 in comes the UAW-CIO... consent election to resolve representation Q, which UAW wins 389:380... followed by a demand that FLU officers be sacked... followed by a sit-down and a long, violent strike, where the company (and its employees) seem to be caught in the inter-organizational crossfire... the strike fails [level of violence tests pro-labor commitments of city authorities past breaking point]... the CIO presence collapses... the FLU withers... then '39 there's the threat of another CIO push, and an independent organization is quickly established by straw bosses and disillusioned former CIO officers.
The NLRB officials started out *certain* that this was a clear ULP case, where the "Heintz Employees Protective Association" was in effect a company union. They changed their minds through the proceedings, and the company won.
What interested me about the story was:
(1) the insights into factionalism & organizational rivalry within the labor movement, and its destructive effects in late 30s in this one small illustrative case;
(2) the demonstration (a la Hobsbawm) of how parties learned the "rules of the game." The VERY SAME attorneys who, fighting the '36-8 Allen case, had been dismissive toward the Board's processes and doctrines... insulting in their questioning of labor witnesses... Rush Limbaugh-like in dealing with Trial Examiner-- in '39 are courteous to everybody, well prepared, know the case law, know the ground on which they're fighting, are keen on establishing lawyer-to-lawyer relations with NLRB personnel.
The kind of detailed work Irons, Tomlins et al. have done on the Board has explained the situation and mind-set of the rule-makers. But an administrative / judicial process is affected by the behavior of the parties as well as the adjudicators. It struck me that it'd be interesting to look at the rapid progress of "Old Deal" lawyers up the learning-curve-- I've a gut feeling that a part of the increasing employer success-rate before the Board has to do with this, as well as with the manifold pressures upon the Board with which we're now all familiar.
(3) A question of language and culture. The legal point at issue concerned how far down the managerial hierarchy could one go and still assume that employees were acting as the company's agents. i.e. Was a straw boss a worker or a supervisor? Reading the transcript, I was *convinced* that what decided the matter in this case wasn't law or `facts,' it was the impression particular witnesses made on the Board's counsel and Trial Examiner. They just couldn't, in their tight-arsed educated way, conceive that a semi-literate Italian immigrant straw boss who "fucked" into the record (much Ivy Leaguey clearing of throats, polite laughter) actually could be a *leader* of his work group, associated in his own mind with the management of the company and its interests. The union case more or less collapsed when it became clear they were asking the lawyers to take this guy seriously as an agent for a company ploy-- they wrote the Employees' Protective Ass'n off as a *genuine* independent.
Anyway, there's more to it than that, but the Heintz case gave me one of my happiest days in Suitland and I recommend it to any grad. student on the Net looking for an interesting paper topic. Intersects with all kinds of questions, notably of course Nelson Lichtenstein's work on the sociology of auto and other industries' supervision.
On which point, how about the SWOC case at Baldwin Loco, C-491, also 1940? Any of you think, from reading all that stuff about SM (Scientific Management), that the *inside contractor* system was a quaint bit of c.19th primitivism on its way out even before Frederick W. Taylor did (or did not do) his first experiment? Well, think again. 91 days of hearings, lots of stuff about contractors, assistant contractors, working leaders... Which (maybe) gets us back to *Yeshiva* and when is an employee not an employee?
Early NLRB files, in other words, as other contributors have said, can make FANTASTICALLY good reading for the modern social historian.
Well, this is certainly a lot easier than trying to write for publication, and perhaps more useful because of the way the Net can encourage swift debate. So, if you have read this far, I look forward to hearing from you.
Howell Harris (H.J.Harris@Durham.AC.UK) +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Subject: Dubofsky's Two Cultures
Thanx to Mel for posing a key question. SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Chris Tomlins addition to the discussion on the NLRB prompted by Seth's and Roger Horowitz's queries was astute and to the point. I wonder, however, did the NLRB really ever enjoy a "golden age." When its staff was most adventure- some and even radical, during its intitial two years, doubt existed as to the NLRA's constitutionality. Do the two years after the Jones & Laughlin decision merit the appelation "golden age." By 1939-40, as Chris points out, after the Smith Committee investigation and Lesierson's appointment, the NLRB had begun to move away from its earlier "radical" posture. Even before then, however, the political balance of power had swung away from labor, the CIO being in real peril between late 1937 and early 1940. The war saved CIO and made the NWLB a far more important player in industrial relations than the NLRB.
Chris's comment raises another interesting point, the clash between what might be characterized as "legal culture" and "Industrial Relations culture." Madden and Smith representing legal culture and Leiserson and later Millis IR culture. Legal culture with its emphasis on abstract rights might seem more pro labor and prounion than IR culture with its stress on mediation, compromise, and harmony. But legal culture with its concern for precedent, rules, and procedures could also be antistrike, antiunion, and antiradical, as many judi- cial rulings demonstrated and Karl Klare argued in his long essay on judicial emasculation of the Wagner Act. And a final point. The clash between legal and IR cultures is an old one that can be traced back to Woodrow Wilson's Commi- ssion on Industrial Relations (and probably even earlier) and the conflict be- tween Charles McCarthy, J.R. Commons, the Wisconsin people (IR) and Frank Walsh and his crowd (the rights talk people).
Melvyn Dubofsky <DUBOF@BINGVMB> +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Subject: Chris Tomlins continues the NLRB discussion
Many thanx to Chris Tomlins for the response to Mel Dubofsky and Howell Harris. SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ I think the two recent posts (Howell Harris and Mel Dubofsky) in the NLRB thread begun by our moderator complement each other nicely, and underline the profoundly contingent character of the NLRB's position from the beginning. Let me offer one or two brief supplementary comments.
I want to add one other point on the "stability" or otherwise of the *legal* environment. We tend to take for granted the world of administrative agencies and, in particular, administrative law. But such things hardly existed in 1935, and much of the opposition in Congress to the NLRB manifested itself in an intense suspicion of an administrative state. Similarly much of the administrative turmoil surrounding the NLRB's early years resulted from the lack of internal consensus on what the appropriate lines of administrative procedure should be. To offer preliminary investigation as just one example, some early trial examiners behaved on occasion like examining magistrates; others thought they should be little judges. There is a lot of internal discussion of this issue, and employer complaints about the more aggressive trial examiners do much to fuel Congressional critics. This is important, because investigative procedure remains a key issue over the next few years in discussions of administrative law in the whole war/post-war tug-of-war over the shape of the state, and the example of the NLRB always bulks very large. The Smith Committee Report, for example, feeds the Walter-Logan bill, which was a devastating attack on the ND state, and which, though unsuccessful, fed into the eventually successful Administrative Procedure Act. Hostility to anything that could be called an administrative state is an animating feature of the Hartley bill in 1947, though less clearly characteristic of the Senate bill or the final LMRA.
One final point. It should be obvious that the variety of research that can be facilitated by NLRB case files is staggering. One strategy that occurred to me years ago but I never did anything to implement was to choose a series of disputes that could be followed through all the bodies of records that they generated. Howell's contribution richly outlines the possibilities here. I hope a new generation of researchers will be encouraged by this promise "christopher tomlins" <clt@merle.acns.nwu.edu> +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Subject: Why should we care about the Wagner Act?
Many thanx to Roger Horowitz for this insightful contribution. SW +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
My hat off to Chris, Howell, and Mel for the continuing discussion of the Wagner Act -- I'm not sure Seth knew what he was in for when he raised his particular question which has sparked this outstanding discussion. The many complications understanding the impact of the Wagner Act, esp. the info supplied by Howell and the qualifications suggested by Mel and Chris, forced me to think harder about the ways in which the Wagner Act/NLRB did work in crucial ways for unionists in the 1930s. I'm left with two primary elements.
All this indicate to me the need to properly appreciate how the revolution in federal labor legislation in the 1930s concatenates with the social history of the American working class in that period. I share Howell's unease with deep explorations into the legal discourse w/o careful balance with its perception among workers and impact on the shop floor. The NLRB case files provide an extraordinary window into the direct impact of state regulation of labor and its very significant ramifications. But we have to be careful to integrate the rendition provided by administrative and legal sources with its reception in working class communities.
Roger Horowitz Hagley Museum and Library RH@STRAUSS.UDEL.EDU