This is the ninth article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series to date include:
“Extra! Extra! Rich Corp Execs Shut Down the NLRB!” Believe it or not, that is today’s news.
And believe it or not, shutting down the National Labor Relations Board was also big news from 1935-1937, when the American Liberty League (ALL), a collection of prominent corporate executives plus their wealthy allies, put their money where their mouths were to shut the NLRB down.
Right-Wing Obstructionism in the Great Recession
Shutting down the NLRB has also been in the news in recent years. A large part of the NLRB’s work involves investigating violations of labor law. Yet just a few months ago, in the lead-up to the 2012 election, Boeing used its wealth and clout to marshal its army of elected federal officials to get out of a labor law violation and weaken the NLRB. Those officials fell in line by threatening to defund the Board for having done its work of enforcing the law, which, in this case, involved investigating charges that Boeing had violated the law and prosecuting Boeing when the investigation showed reasonable cause to believe that Boeing had violated the law.
Not to be outdone, House members set up a hearing to investigate the NLRB’s investigation. In the hot seat was acting General Counsel Lafe Solomon. Why was Solomon in the role of only “acting” general counsel in 2011 – and still to this day? Solomon is one of the many people the Senate has refused to confirm to positions as federal judges or heads of agencies.
In the case of the NLRB, it has been years since Republican senators have done their duty and confirmed new NLRB members and a general counsel. That story is a long, sad tale resulting in judicial decisions in NLRB v. Noel Canning and now in NLRB v. New Vista Nursing & Rehabilitation, which have now made it virtually impossible for the NLRB to operate.
For the right-wing, maximum obstructionism to the enforcement of laws that protect employees is the answer to its prayers.
The American Liberty League – Obstructionism in the Depression
Today’s labor news, complete with manufactured outrage and attacks on a government agency that protects workers – and our economy and democracy – are just part of a long tradition of giving power to the rich and taking away legal rights of the poor.
Most people have never heard of the ALL, but its members continue to be household names. The members of the ALL were both rich and powerful. Chief financial support for the A came from members of the DuPont family; George M. Moffet (president of the Corn Products Refining Co.); Sun Oil President J. Howard Pew; president and chairman of General Motors Alfred P. Sloan; National Steel chairman E. T. Weir; General Motors vice president and member of the General Motors board of directors John Pratt; and famous supporters, such as movie director and producer Hal Roach.
Even some federal judges were members of the ALL. In an odd twist of fate, the judge assigned to make the first ruling on the NLRA’s constitutionality – Judge Merrill E. Otis of the Federal District Court at Kansas City, Missouri – was himself a member of the ALL. Judge Otis was not the only judge who was an ALL, member according to Peter Irons in his book The New Deal Lawyers and Robert F. Burk in his book The Corporate State and the Broker State.
After the National Labor Relations Act (NLRA) became law, the headlines could have been, “American Liberty League Shuts Down the National Labor Relations Board.” Walter Gelhorn & Seymour L. Linfield described the situation in 1939:
The National Labor Relations Act was passed in the teeth of a tenacious belief of employers that employees should not be permitted to bargain collectively through representatives of their own choice. On the very day following the National Labor Relations Board’s first session fifty-eight legal luminaries, acting under the aegis of the American Liberty League, declared the Act to be unconstitutional; their pronouncement served as a model brief for the scores of injunction suits which practically brought to a standstill the Board’s work during its first two years.
ALL’s main strategy was to file injunctions to prevent the NLRB from carrying out its duties. In the first month of the NLRB’s existence, as it was setting up its offices across the country, the National Lawyers Committee of the ALL produced a model brief to be used to attack the NLRA. The NLRB called the brief “a deliberate and concerted effort by a large group of well-known lawyers to undermine public confidence in the statute, to discourage compliance with it, to assist attorneys generally in attacks on the statute, and perhaps to influence the courts.” Citation at p.46-47
Employers that supported the ALL’s campaign resisted by refusing to comply with the new law. By 1937, when the Supreme Court declared the NLRA to be constitutional, the ALL had filed 100 injunction petitions.
It might be difficult to believe, but a third source of problems for the infant NLRA was the war in the union movement between the Congress of Industrial Organizations (CIO) and the American Federation of Labor (AFL). The more radical, younger CIO was based in industrial unions such as the automobile industry. The AFL was based in craft unions, such as skilled trades. Had the two groups made common cause against the attacks on the NLRA, rather than fighting one another, the ALL attack might have had less effect. But the union movement’s lack of unity made it more difficult for the new law to be vigorously enforced.
Key battles between unions affiliated with the AFL and CIO unions took place during the run-up to the NLRB’s holding elections for employees to vote on whether they wanted to be represented by a union. The AFL called the NLRB a “kangaroo court” with a CIO bias, and the CIO claimed the NLRB had a pro-AFL bias. These inter-union battles also included fighting for NLRA amendments that would put the other organization at a disadvantage. In other words, the union movement saw the NLRB more as terrain on which to conduct battle than as support in the larger goal of increasing union membership.
Despite these battles, union membership exploded from 3 million in 1935 to 15 million in 1947. That dramatic increase took place despite the number of workers who were fighting World War II and despite inter-union battles. Part of that increase involved women who supported the war effort by going to work in what had been considered men’s work.
However, despite the growth in union membership that brought prosperity to so many, the first of the judges who would weaken the NLRA through judicial amendments were already in place. When the Supreme Court declared that the NLRA was constitutional in 1937 in NLRB v. Jones & Laughlin Steel Corporation, attacks on the new law did not end. Judges created a number of doctrines that undermined the purposes of the law and denied effective remedies.
For example, judges “amended” the NLRA by creating a doctrine – found nowhere in the Act or in law in general – that NLRA remedies could not be punitive to the wrongdoer. Rather, the NLRA says that remedies must effectuate the NLRA. The result has been that this judicial amendment has constricted the remedies available to employees whose NLRA rights have been violated.
Second, judges created a number of deductions that had to be subtracted from backpay employers owed employees whose rights had been violated. Judges also created disqualifications that could prevent employees from even receiving a remedy.
Third, judges have steadily increased the number of people in the class of injured individuals who would not be deemed to be employees.
In other words, history has shown that, although the ALL did not succeed in shutting down the NLRB, the persistence of the ALL’s political heirs has often been rewarded. Their legacy lives on in both court decisions interpreting the law and in the actions of current groups still trying to undermine the NLRA.
The lesson is clear that those who want to promote the values of the NLRA must be as dedicated – or even more dedicated – to the democratic values that form the basis of the NLRA.
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