This Day in Labor History: January 3, 1921

On January 3, 1921, the right-wing Supreme Court threw issued its decision in Duplex Printing Press Co v. Deering. In this case, the Court threw out protections for secondary boycotts that were codified in the Clayton Act. In doing so, the Court once again proved the enemy of unions and the American working class in general, which it has remained outside of the relatively brief period after 1937 when the New Deal state was at its peak.

For much of the twentieth century, the Court was at war with Congress and labor unions over secondary boycotts. For unions, secondary boycotts were critical to maintaining any kind of solidarity. Individual unions were weak and usually still are today. Going up against an entire economic structure was more than a single union could handle. Moreover, it simply did not have the power to win. Meanwhile, ideas of solidarity rested in the nest of mutual aid, which was a series of ideas developed in the nineteenth century, originally around financial support but growing to be about taking labor actions that would assist other unions by working to shut down the economy to support a strike. The secondary boycott meant that union members would put their own livelihoods on the line to engage in solidarity strikes that would help all unions win and move forward economic justice in America. It could also mean that a union uses its members to isolate a company that refuses to recognize the union, bringing the collective power of the union down on the recalcitrant employer by threatening the entire business’ sales, building, and repairs. It was this type of secondary boycott that occurred in this case.

American elites of the Gilded Age had, at best, a very limited tolerance for unions. They often spoke in favor of the idea of the union in theory, but their idea of a union was workers coming together to voice some opinions but without the power to do anything about it. That meant opposing the closed shop, given workers any voice in management decisions, wages and hours issues, and especially secondary boycotts. They held fast to the idea that a workplace was between an owner and his workers and nothing should get in the way of that. Moreover, this combined with a general American elite hysteria over collective action so that even a minor act of solidarity was basically the Paris Commune reaching America’s fair shores and thus needed to put down with the full power of government.

Given all of this, it is then not too surprising that the courts, and especially the Supreme Court, would consistently rule against just about anything unions did that was useful to their winning. That included rewriting the law to serve corporate interests. In 1890, Congress passed and President Benjamin Harrison signed the Sherman Anti-Trust Act, which was a mild law against monopoly. But the courts had no interest in interpreting that law for its stated intent. Instead, it became a tool to bust unions. In short, secondary boycotts and other union activities were now classified as unlawful restraints on trade and ruled illegal. This was not what John Sherman, who was no friend of unions, had in mind. But the courts are going to do what the courts will do because we have created a system that allows unelected elites to do whatever they want.

This situation led Congress to pass the Clayton Act in 1914. Woodrow Wilson, the most pro-labor president before FDR, even if you take into account the horrors of the Red Scare, gladly signed the bill. The bill explicitly exempted unions from the Sherman Act, overturning the entire idea of antitrust being applied to unions, so long as the strikes were “peaceful” and “lawful.” This passed by very large margins in both houses.

But what the heck does “peaceful” and “lawful” mean. Samuel Gompers called the Clayton Act “Labor’s Magna Carta” but like so much potentially positive legislation of this time, the language was so vague that the path to doom was written into the bill.

Duplex Printing Press was a company in Grand Rapids, Michigan. It was a strictly open shop, anti-union company. The International Association of Machinists tried to organize the company. When that didn’t succeed, it engaged in secondary boycott, telling the companies it had organized that they’d better not buy any Duplex products or they could well face a strike themselves. It told repair shops not to fix broken Duplex machines. It told union installers that they would get in trouble if they installed any equipment in the Duplex factory. So Duplex sued the IAM, saying that this action was an unlawful restraint of trade. Both the IAM and AFL found this ridiculous–for them, this was standard union behavior and it should be upheld. That was the point of the Clayton Act after all. Moreover, it’s not as if the IAM had bombed Duplex or engaged in anything like violence. What was unlawful here?

For the Supreme Court, it simply did not matter. In a 6-3 decision issues on January 3, 1921, the Court ruled this action unlawful. It stated that this was outside the range of the Clayton Act due to that vague language that allowed it to choose what fell within the lines. Louis Brandeis, writing the dissent, was apoplectic and so was Oliver Wendell Holmes joining the dissent (John Clarke did as well). Brandeis wrote:

May not all with a common interest join in refusing to expend their labor upon articles whose very production constitutes an attack upon their standard of living and the institution which they are convinced supports it? Applying common law principles should be the answer: Yes, as if as a matter of fact those who so cooperate have a common interest.

Moreover, Brandeis noted that Congress had expressly considered this situation and acted upon it with the Clayton Act. But the majority, led by Mahlon Pitney, one of the true hacks of all time, simply didn’t care. These were unions, unions had no place in their vision of America, and so they were going to crack down.

Over the next decade, courts up and down the line made the Clayton Act effectively null and void. In 1932, the AFL again went to Congress and with the Norris-LaGuardia Act, more explicitly exempted unions from antitrust law, which the Roosevelt-named Supreme Court later did find constitutional. But that is a rare moment. We might look back at the period after 1937 as a great time for the Court’s relations with unions, but not only was it only OK on labor issues, that is the exception. As we see in today’s court, anything unions do that works is ruled “unconstitutional” based on the clear principle of “I hate unions and I love employers.” We’ll see if we can ever change the Court.

This is the 464th post in this series. Previous posts are archived here.