Friday, February 15, 2013

"Labor is Not a Commodity"

The New Republic, December 2, 1916:
THE threat of the American Federation of Labor, at its annual meeting last week, to disregard any injunction based upon the conception that labor is property indicates a frame of mind that may well become alarming if it is not met with sympathy and understanding. The emotion behind the ringing report adopted by the convention is a noble one, one that appeals to the laboring man's finest impulses. It is a yearning for independence and self-respect, for economic emancipation and a revolt against the whole proprietary attitude which capital so often takes toward labor, which looks upon a workingman as a thing of value, to be appraised according to output, skill, endurance and docility. "That the labor of a human being is not a commodity or article of commerce," is full of intense meaning to the union men who insisted on its enactment. The workingman who has found his strike for higher wages and better conditions blocked by the cold decree of a class-biased judge knows how it feels to be looked upon as the property of his employer.

What makes this impulse threatening is that it has been blocked and misled into blind alleys not only by labor's enemies, but by its guides and advisers. The technical task of translating labor's yearning into a legal enactment has been woefully botched by its leaders. The rallying cry that labor is not a commodity or a property right has been attached, whether by design or by accident we do not know, to a legislative program which does not give labor what it wants, or what it thinks it is getting. A layman as a rule has no stomach for technical legal argument. That is one of the reasons why the lawyers in Congress find it so easy to pass laws which seem to do one thing, but really do quite another. The result has been that Congress has passed a law which organized labor firmly believes has exempted it from the Sherman law, but which in reality is skillfully drafted so as to do nothing of the kind.

There is no doubt that labor thinks it has been exempted from the Sherman law. In so far as this belief is based on more than a blind faith in what the Federation leaders have told them it seems to rest on the argument that the Sherman law makes it illegal to restrain trade in "articles of commerce," and that by declaring labor to be not an article of commerce, you take it out of the Sherman law. But you do nothing of the kind. When the Danbury Hatters were compelled to pay triple damages for violating the Sherman law, it was not because the Supreme Court thought labor was a commodity. It was because hats are a commodity The boycott of the Danbury Hatters restrained trade in hats, not in labor. When Debs was sent to jail for violating an injunction against interfering with interstate railroads by calling a strike, it was not because the labor of the men whom he called out was an article of commerce but because the things the railroad was carrying, and the railroad cars themselves were articles of commerce. Had the Clayton act been then in force it would not have changed either decision.

The test of the section does not get us any further. "Nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor" and other "organizations, or to forbid or restrain the individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the Members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws." This is the work of a skillful draftsman. It is made to sound like an exemption But closely examined, it exempts nothing. In so far as it merely sanctions the "existence" of labor unions, it is meaningless, for their existence has never been supposed to violate the Sher­man law. The word "operation" adds nothing, for by canons of construction familiar to lawyers, this means "lawful operation." The word makes nothing lawful that violated the law before the Clayton act was adopted. Aside from this, the unions are simply allowed to "lawfully carry out the legitimate objects" of a union. If the courts think a boycott like the Danbury Hatters', or a strike like that of Debs, to be unlawful and illegitimate (and they are by precedent bound to do so) the Clayton act does not apply to them at all. The clause that labor unions and their members shall not be held to be illegal combinations adds nothing. Being is not a crime. It is what he does, not what he is, that lands a man in jail. The Dan­bury Hatters were mulcted because they conducted a boycott, not because they were a union. At most the phrase means that the mere existence of labor unions is not in violation of the Sherman law; but this has always been the law.

The provision prohibiting injunctions in the federal courts in labor cases "unless necessary to prevent irreparable injury to property or to property right" is worse than useless, from the point of view of labor. The phrase harks back to an old doctrine of equity, that injunctions may be issued only to protect property, and not to protect personal rights, a doctrine against which modern jurists have strongly and justly protested, and which modern courts have shown a wholesale tendency to disregard. The Clayton act intrenches it in our federal jurisprudence, in just the field of litigation in which personal rights are most in need of adequate protection. The theory on which the provision was justified to the labor leaders seems again to have been that, since labor is not a commodity to call a strike is not to affect a property right, so that no injunction will be given. But, as the lawyers who framed the section well knew, when a strike is called it hurts the employer in his whole business—his profits fall off, his plant lies idle, and he is deprived of its use. And the courts have held so often that it is now settled law, that a man's business is property. The provision, therefore will not prevent a single injunction to protect an employer against a strike. If it has any effect, it will be to prevent courts issuing injunctions against blacklists circulated by employers against workmen. If a workingman asks for an injunction against a blacklist, the court will tell him that since it can issue injunctions in labor cases only to protect property, and since his labor is not property, it cannot help him. Such is the doctrine into which labor's noble revolt against the conception that it is the employer's property has been perverted. It has led to a law which denies that a man's labor is his own property. Could the National Association of Manufacturers have framed a section more favorable to capital and more hostile to labor?

The only section of the Clayton act which is of any value to labor is that which gives, in a limited class of cases, trial by jury for violation of an injunction. It applies only where the thing which the workingman has done is not only a violation of the injunction, but also a crime. As far as this goes, it is a distinct gain, for one of the worst features of labor injunctions has been the fact that a violation of the injunction was tried by the judge who had issued it, and who naturally felt that anything that savored of a violation of it was a personal affront to him. But the section does not go far, and it is doubtful whether a laboring man will be very anxious to brand himself a criminal by claiming its protection. And it is not for this section that labor has been taught to treasure the Clayton act.

The men who are now complacently enjoying the success with which they have misled the officials of the American Federation of Labor may well spend a few minutes in sober thought. The counsel of lawlessness at the convention last week was not mere bravado. It was made by responsible men who had carefully weighed what they were saying. What will organized labor do when it discovers that it has been defrauded? If the courts decide that despite the Clayton act unions are still subject to the anti-trust laws, and still liable to injunction, as they inevitably must, will they not take this to be a challenge daring them to carry out their threat? To those who are concerned over the lack of popular confidence in the courts the prospect is most ominous. Labor leaders have staked so much on this legislation, this Magna Charta of American labor, that it will be hard indeed to persuade them that it will not be the courts that are to blame, but a pusillanimous Congressional committee of lawyers who were willing to draft a deceitful statute and shield themselves against the wrath of labor behind the Supreme Court of the United States.

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