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The Labor Clauses of the Clayton Act

Published online by Cambridge University Press:  01 August 2014

Alpheus T. Mason
Alpheus T. Mason*
Affiliation:
Trinity College, N. C.
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Extract

The Supreme Court's decision in the Danbury Hatters' case marked the beginning of a new era in trade-union activity, for laborers well realized that the Sherman act, as interpreted and applied by the court in that case, was a measure with which they would eventually have to reckon. The provision expressly declaring that equity courts may be resorted to in order to restrain violations of the act was an objection in itself, serious enough. But the statute held for laborers a much more vital concern: they also perceived that a strict construction of its provisions might even jeopardize the existence of the trade union itself. Laborers naturally felt very keenly even the suggestion that the Anti-Trust Act might be interpreted in such a manner as to deny to laborers the right to organize, and they undoubtedly believed, and not without a certain justification, that the dissolution of the trade union, as a combination in restraint of trade, would be the probable, if not the necessary, result of the court's decision in the Hatters' case.

“Under the interpretation placed upon the Sherman Anti-Trust law by the courts,” Mr. Gompers averred, “it is within the province and within the power of any administration … to begin proceedings to dissolve any labor organization in the United States.” Labor unions exist only “at the suffrance of the Department of Justice.”

Type
Research Article
Information
American Political Science Review , Volume 18 , Issue 3 , August 1924 , pp. 489 - 512
Copyright
Copyright © American Political Science Association 1924

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References

1 See the interesting editorial by Mr.Gompers, on this point, “Anti-Trust Law and Labor”, 21 Federationist 35.Google Scholar

2 This tendency, laborers could observe in the English cases, Hilton v. Eckersley 6 E & B 47 (1855), Hornby v. Close, 8B & S, 175 (1867), Farrer v. Close 10 B & S., 553 (1869). See Stephen, , History of Criminal Law in England, Vol. III, p. 222.Google Scholar

3 Testimony of Mr. Gompers before the judiciary committee of the House on Trust Legislation. Vol. I, p. 16, 63d Cong., 2nd Sess.

4 38 Stat. at L. 730.

5 Mr. Gompers spoke of section 6 as “Labor's Magna Charta” and section 20 as “Labor's Bill of Rights”.

6 See especially Duplex Printing Co. v. Deering, 254 U. S. 443; American Steel Foundries v. The Tri-City Central Trades Council, 257 U. S. 184. See also, United Mine Workers v. Coronado Coal Co., 259 U. S. 344. At the recent Convention of the American Federation of Labor, held in Portland, Oregon, the executive committee declared again that the Clayton Act, although originally intended to exempt labor organizations, had been so construed by the Supreme Court as to be turned against organized labor. The committee stated that legislation to rectify this construction of the Act would be sought. See Federationist for November, 1923. Prior to the Supreme Court's construction of the labor clauses of the Clayton Act, we find the following interesting discussions of the effect of the Act on labor: Davenport, Daniel, “An Analysis of the Labor Sections of the Clayton Anti-Trust Bill”, 80 Central Law Journal 146 (1915)Google Scholar; “Labor is not a Commodity”, 9 New Republic 112, Dec. 2, 1916; Witte, Edwin E., “Section Twenty of the Clayton Act,” 9 New Republic 243 (1916)Google Scholar; Witte, Edwin E., “The Clayton Bill and Organized Labor,” 32 Survey 360Google Scholar; “The Labor Provisions of the Clayton Act,” 30 Harvard Law Review 632, (1917); Taft, Wm. H., 39 Am. Bar Ass'n 371–380.Google Scholar See also, House Rept. No. 627, 63d Cong., 2d Sess.; Rept. No. 698, 63rd Cong., 2d Sess.

7 Testimony of Mr. Gompers before the House judiciary committee, supra, p. 18, 63rd Cong., 2d Sess.

8 This opinion was expressed time after time on the floor of Congress during the discussion on the Clayton Bill. See Cong. Rec., Vol. 61, pp. 14018, 12278, 14014, 13918. See also footnotes 12, and 13, infra.

9 According to the accepted definition of the Supreme Court “A conspiracy is a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means.” Duplex Printing Co. v. Deering, 254 U. S. 443, 465, citing Pettibone v. U. S. 148 U. S. 197, 203.

10 See in this connection, an article by Mr.Gompers, , entitled “The Charter of Industrial Freedom-Labor provisions of the Clayton Anti-Trust Law”, 21 Federationist 957.Google Scholar “The labor sections of the Clayton Anti-Trust Act”, writes Mr. Gompers, “are a great victory for organized labor. In no country in the world is there an enunciation of fundamental principles comparable to the incisive, virile statement in section 6.”

11 Statement of the Executive Council of the American Federation of Labor, 22 Federalionist 116.Google Scholar

12 “Those words, the labor of a human being is not a commodity or article of commerce,” writes Mr.Gompers, , “are sledge-hammer blows to the wrongs and injustice so long inflicted upon the workers. This declaration is the industrial magna charta upon which the working people will rear their structure of indus trial freedom”. 21 Federalionist 971.Google Scholar

13 This was a fact repeatedly recognized by members of Congress. Note, for instance, the words of Senator Cummins, , Cong. Rec., Vol. 51, pt. 14, p. 13980Google Scholar; Senator Thomas, Cong. Rec., Vol. 51, pt. 14, p. 14022; Congressman Madden, Cong. Rec., Vol. 51, pt. 10, p. 9496; SenatorJones, , Cong. Rec., Vol. 51, pt. 14, p. 14013–14014Google Scholar; Senator Cummins, Ibid., p. 13980. See also an interesting editorial entitled “Labor is not a Commodity” in 9 New Republic, p. 112. Dec. 2. 1916.

14 That section 6 was nothing more than a legislative declaration of the law as it had been laid down by the Supreme Court is well illustrated by the following quotations from opinions of the court:

“What possible legal or logical connection is there between an employee's membership in a labor organization and the carrying on of interstate commerce? Such relation to a labor organization cannot have in itself and in the eye of the law any bearing upon the commerce with which the employee is connected by his labor and service. Labor associations, we assume, are organized for the general purpose of improving or bettering the conditions and conserving the interests of their members as wage-earners—an object entirely legitimate and to be commended rather than condemned …. Surely those associations as labor organizations have nothing to do with interstate commerce as such.”—Adair v. U. S., 208 U. S. 178.

“The'law …. recognizes the right of workingmen to unite and to invite others to join their ranks, thereby making available the strength, influence and power that comes from such associations. By virtue of this right, powerful labor unions have been organized. But the very fact that it is lawful to form these bodies, with multitudes of members, means that they have thereby acquired a vast power, in the presence of which individual members may be helpless. This power, when unlawfully used against one, cannot be met, except by his purchasing peace at the cost of submitting to terms which involve the sacrifice of rights protected by the constitution, or by standing on such rights and appealing to the preventive powers of a court of equity. When such appeal is made, it is the duty of government to protect the one against the many as well as the many against the one.” Gompers v. Bucks Stove and Range Co., 221 U. S. 439.

15 “A workman or a combination of laborers,” declared Mr. Borah in this same connection, “may quit work the incidental effect of which may restrain trade, and yet the resulting injury is a damage for which there is no remedy; but if men come together to restrain trade, for the purpose of preventing commerce between the states, there results a restraint of trade which they or no one else can do or should be permitted to do.” Cong. Rec., Vol. 51, pt. 14, p. 13919. See also quotations in footnote above.

16 McCumber, Senator, Cong. Rec., Vol. 51, pt. 14, p. 13965.Google Scholar See remarks of Mr.Work, to the same effect, Cong. Rec., Vol. 51, pt. 12, p. 12278.Google Scholar

17 SenatorJones, , Cong. Rec., Vol. 51, pt. 14, p. 14014Google Scholar; “I am in favor”, says Senator Borah, “of any measure which is deemed essential to protect and shield fully labor unions as such from the condemnation of the Sherman anti-trust law or any other law. I do not believe that unions are now condemned by that law or in anywise prohibited. I do not believe that any well-considered decision of the court can be found to that effect. But if there is fear that such decision may be had, or there is belief that any court has assumed to go thus far and to say that the organization of labor unions is of itself a restraint of trade, then this legisla tion is justified to that extent and I cordially support it to that extent.”—Ibid., p. 13923, 13918.

18 “There is no license to commit crime. Talk along this line is bosh. If a labor organization violates the Sherman law, it will be open to prosecution under the Sherman law. But its members may not be sent to jail for merely belonging. This may be the law now; but doubt has been thrown on the right of men to combine together for the joint selling of their labor, and it is worth while to have the doubt removed.” Quoted by Mr.Carlin, , Cong. Rec., Vol. 51, pt. 10, p. 9565.Google Scholar Compare also the observations of Mr.Cummins, , Cong. Rec., Vol. 51, pt. 14, p. 13980.Google Scholar

19 See remarks of Mr.Clapp, , Cong. Rec., Vol. 51, pt. 14, p. 14019Google Scholar; Senator Thomas, Ibid., p. 14021; Mr. Work, Ibid., pt. 12, p. 12279; Senator Thomas, Ibid., Vol. 51, pt. 10, 9544.

20 Cong. Rec., Vol. 51, pt. 14, pp. 14012–13–14.

21 See remarks of Mr.Macdonald, , Cong. Rec., Vol. 51, pt. 10, p. 9545Google Scholar; Ibid., Towner, p. 9547; Ibid., Johnson, p. 9549; Ibid., Hulings, p. 9550.

22 Mr.Webb, speaks for the members of the judiciary committee on this point, Cong. Rec., Vol. 51, pt. 10, p. 9567.Google Scholar “We are asked by some,” said Mr.Borah, , “to declare that the labor unions may go further and affirmatively and effectively and with design interfere with or restrain interstate commerce; that while we condemn interests and punish if they restrain trade or monopolize interstate commerce, we will except labor unions. This …. I cannot do. I could not support such a measure as a citizen or a Senator, and if I were a laboring man I am convinced I would not ask it.” Cong. Rec., Vol. 51, pt. 14, p. 13925.Google Scholar See also remarks of SenatorJones, to the same effect, Cong. Rec., Vol. 51, pt. 14, p. 14017.Google Scholar

23 Cong. Rec., Vol. 51, pt. 10, pp. 9654–9655.

24 Taft, Wm. H., 39 Am. Bar. Ass'n. Reports, p. 376.Google Scholar See generally, pp. 371–380.

25 Cong. Rec., Vol. 51, pt. 10, p. 9611. See also Senate Reports, No. 698, 63rd Cong., 2nd Sess., p. 23, et seq.

26 Witte, Edwin E., “Section Twenty of the Clayton Act,” 9 New Republic, 243 (1916)Google Scholar; Taft, W. H., Ibid., pp. 376–377. Mr.Wickersham, , on the contrary, holds that if the Clayton act had been in force in 1908 the operations of the United Hatters would have been lawful, “Labor Legislation in the Clayton Act,” 22 Federationist 493.Google Scholar

27 Cases referred to are: Loewe v. Lawlor, 235 U. S. 522, Eastern States Lumber Dealers' Assoc. v. U. S., 234 U. S. 600.

28 Duplex Printing Co. v. Deering, 254 U. S. 443.

29 See footnote 30, infra, for citations of the views of Congress on this subject and footnote 40, infra, for the opinion of Mr. Taft. Mr. Justice Pitney himself retreats from this position a little further along in his opinion when he says: “The emphasis placed on the words ‘lawful’ and ‘lawfully,’ ‘peaceful’ and ‘peacefully’ … strongly rebut a legislative intent to confer a general immunity for conduct violative of the anti-trust laws or otherwise unlawful.” 254 U. S. 473. It is interesting to note, moreover, the connection in which Mr. Justice Pitney made the statement quoted in the text. Pointing out the far-reaching importance of section 20 by reason of the fact, as he contended, that it granted special privileges to labor, he was arguing for a guarded not to say narrow construction of its provisions.

30 Mr. Webb, (speaking for the Judiciary Committee): “I will say frankly to my friend when this section was drawn it was drawn with the careful purpose not to legalize the secondary boycott, and we do not think it does. There may be a difference of opinion about it, but it is the opinion of the committee that it does not legalize the secondary boycott and is not intended to do so. It does legalize the primary boycott; it does legalize the strike; it does legalize persuading others to strike, to quit work, and the other acts mentioned in Section 18 (20), but we did not intend, I will say frankly, to legalize the secondary boycott … The language … does not authorize the secondary boycott and (it would not be tortured into any such meaning). While it does authorize persons to cease to patronize that same party to the dispute, and to recommend to others to cease to patronize that same party to the dispute, that is not a secondary boycott. I may say again … and I speak for, I believe, practically every member of the judiciary committee … that if this section did legalize the secondary boycott there would not be a man to vote for it. It is not the purpose of the committee to authorize it, and I do not think any person in this House wants to do it. We confine boycotting to the parties to the dispute, allowing parties to cease to patronize that party and to ask others to cease to patronize the party to the dispute. “Cong. Rec., Vol. 51, pt. 10, pp. 9652–9653, 9658. Cf. also, Cong. Rec., Vol. 51, pt. 15, p. 14609; Ibid., pt. 10, pp. 9611, 9652. This view, moreover, is expressed by Mr. Justice Pitney in the Duplex case, quoted in footnote 29, supra.

31 Continuing, Mr. Madden declared: “Sections 15 and 18 (Section 20 of the final enactment) are not mere ‘gold bricks.’ They are gold bricks containing dynamite … None of the acts specified (in Sec. 20) ever were held unlawful per se; and after the care taken to annex to them the qualifying words “peacefully” and “lawfully”, etc., how would it be possible for a court to now hold them unlawful per se?” Cong. Rec., Vol. 51, pt. 10, p. 9496.

32 Cong. Rec., Vol. 51, pt. 10, p. 9611.

33 See Sections 21 and 22; Taft, W. H., 49 Am. Bar Ass'n., 379, 380.Google Scholar

34 Truax v. Corrigan, 258 U. S. 312 (1921). See also the present writer's article, “The Legal Justification for Injunctions in Labor Disputes”, 23 South Atlantic Quarterly 40.

35 22 American Federationist 665 (1915).

36 63d Cong. 2d Sess., Senate Reports, No. 698, p. 33.

37 Cong. Rec., Vol. 51, pt. 14, p. 14017–18, 63d Cong., 2d Sess.; 32 Survey 360; 80 Central Law Journal 46; 30 Harvard Law Rev. 636.

38 Cong. Rec., Vol. 51, pt. 14, 13972.

39 Cong Rec.. Vol. 51, pt. 10, p. 9611.

40 Mr. Taft reads this section as merely “declaratory of what was always the best equity practice,” and does not even suggest a possibility of its unconstitutionality. 39 Am. Bar. Ass'n Reports 379.

41 Sections 21 and 22, authorizing the defendant in contempt cases to demand a trial by jury, has already been.declared unconstitutional by a federal court (In re Atchison, 284 Fed. 604), as a legislative encroachment upon the independence of the judiciary. See also Michaelson v. U. S. 291 Fed. 940; 36 Harvard Law Rev. 1012.

42 Senate Report, supra, p. 25.

43 In commenting upon the effect of the Clayton act on labor, Mr. Wm. H. Taft said in 1915: “The changes from existing law (which these provisions) make are not broadly radical and most of them are declaratory merely of what would be law without the statute. This is a useful statute in definitely regulating procedure in injunctions and in express definition of what may be done in labor disputes. But what I fear is that when the statute is construed by the courts it will keep the promise of labor leaders to the ear and break it to the hope of the ranks of labor.” 39 Am. Bar. Ass'n. Reports 380. This statement, coming as it does from one who was to have the final construction of the Clayton act largely in his own hands, is noteworthy and significant.

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