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Labor’s Enemies Wear Black Robes, Not White Hoods

One doesn’t have to be a professional historian or archivist to appreciate just how virulently skewed the U.S. judicial system has been in its dealings with working people. One doesn’t have to be a legal scholar to acknowledge that moneyed interests have always been provided with their own form of “justice.” All one has to do is pay attention.

From Day One, the federal courts and Supreme Court have taken the side of employers, peddlers, merchants, plantation owners, industrialists, entrepreneurs, bankers, and any other remotely Establishment agent (including law enforcement officials) who more or less stands in opposition to the interests of the working masses. Not to get all “Marxian” here, but it’s true.

That shouldn’t surprise anyone. After all, whom do federal judges typically pal around with? The Country Club set, or men and women who actually toil for a living? Indeed, if it happened to be the latter, it could be the opening of a classic joke: “A welder, bricklayer and federal judge are drinking together in a bar….”

Granted, the High Court has thrown the occasion bone in the direction of the “proletariat,” but that gesture has usually been in the form of extending due process or some other civil libertarian right to the underdog. It’s different when it comes to money and property. In matters involving economic hegemony, workers have historically been pissed on from a great height.

One example of just how “corporate-minded” the judiciary has always been is the application of the landmark Sherman Anti-Trust Act (1890) in the Danbury Hatters Case (1908). While liberals loved passage of the Sherman Act because they finally had something on the books that thwarted monopolies and price-fixing, the manner in which the Supreme Court interpreted the Act was a mind-blower.

Briefly, the facts are these: When a labor union, the United Hatters of North America, tried to organize a hat factory—D.E. Loewe and Company, located in Danbury, Connecticut—the company unceremoniously rebuffed them (officials refused even to meet with the union). Accordingly, the United Hatters called a strike.

And when D.E. Loewe and Company hired scabs to replace the striking workers, the hatters swung into action. With the assistance of the influential AFL (American Federation of Labor), they launched a public relations campaign, urging the company’s retail outlets not to carry Loewe’s merchandise. Apparently, the proposed boycott worked extraordinarily well. Customers balked and orders shrank.

But D.E. Loewe took its case all the way to the Supreme Court. They argued that the AFL’s boycott violated the “restraint of trade” provision laid out in the Sherman Act, and incredibly, the U.S. Supreme Court bought the argument. The Court basically stated that anything that resulted in significantly impeding a commercial venture—including strikes and boycotts—was illegal under the Sherman Act.

Not content to simply win, D.E. Loewe filed a lawsuit against the union, demanding compensation. Citing the Sherman Act, a lower court awarded Loewe triple damages (triple!!), to be paid by members of the United Hatters. Bank accounts were attached and home foreclosures were threatened. Naturally, the union appealed, but the Supreme Court, in 1915, upheld the decision. So much for workers’ rights.

The Danbury Hatters Case was just one of many anti-labor decisions passed down by the courts. There were dozens of others. It wasn’t until 1932, with passage of the Norris-LaGuardia Act (which forbid judges from arbitrarily issuing strike injunctions), that things began looking up, and it wasn’t until 1935, with passage of the Wagner Act, that organized labor finally gained a place at the table.

Still, even with Wagner in effect, organized labor’s status was precarious. In fact, labor’s “glory days” lasted barely 12 years. In 1947, the Taft-Hartley Act altered many of the Wagner Act’s provisions, including making “right to work” states legal and making secondary boycotts illegal.

By passing Taft-Hartley, the U.S. Congress demonstrated that it was equally as hostile to labor as the courts were.

Unfortunately, boycotts (even the legal, modestly ambitious ones) don’t usually work today because we’ve become too fragmented and diluted (in union jargon: “corpuscular”) as a nation. It’s hard to mobilize and harder yet to maintain discipline.

But even if we did become unified, even if by some crazy happenstance working people (the bottom 80-percent), in a splashy show of solidarity, were able to put a dent in the nation’s commerce, it would be illegal. President Obama would invoke Taft-Hartley and make everybody go back to work.

Working people have no leverage. They aren’t allowed to engage in meaningful strikes, they aren’t allowed to engage in meaningful boycotts, and they aren’t even allowed to keep their jobs during a walkout. Doesn’t that give a whole new meaning to the term “stacked deck”?

David Macaray is a playwright and author. His newest book, “Nightshift: 270 Factory Stories,” will be published in June. He can be reached at dmacaray@gmail.com

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David Macaray is a playwright and author. His newest book is How To Win Friends and Avoid Sacred Cows.  He can be reached at dmacaray@gmail.com

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