over whether or not this action of the union constituted a secondary boycott. Those who contend that it was not a secondary boycott point to the fact that the workers in the quarries and the stonecutters at the point of use were members of the same union. However, the usual definition of a secondary boycott includes the coercion by boycott of an innocent third party who, in turn, may be expected to bring pressure against the employer with whom the union has the dispute. In this sense the boycott was definitely secondary in nature. Courts have almost universally held such boycotts to be unlawful.

The other case decided about the same time as the Bedford case was one lumping together a series of injunctions brought against the United Mine Workers by 316 coal-mining companies and known as the Red Jacket cases. In these cases the Supreme Court (1) stopped the payment of dues to unions in West Virginia, (2) stopped the checking off by coal companies of union dues to be paid by the companies to unions, (3) forbade union organizers and members to trespass upon company property, (4) upheld the right of companies to require their employees to sign yellow-dog contracts, and (5) assisted companies in evicting union members from company-owned houses.

As a result of the cases cited in this section, all but one of which went against unions, organized labor became convinced that the courts were biased against them. Two measures were advocated by union leaders by way of defense: (1) that attempts be made to take away from the courts their power of judicial review (a power which was assumed, and not granted by the Constitution) and (2) that all judges be elected by the people for relatively short terms. Needless to say, the unions made no headway with either of these ideas.

Era of the Great Depression. The effects of overexpansion of industry and the overextension of credit at home and abroad culminated, in 1929, in a stock-market crash which heralded the country's greatest business depression. For three and one-half years the Republican administration fought a losing battle. Hundreds of millions of dollars were spent in a futile effort to maintain employment, support farm prices, bolster consumer purchasing power, and otherwise prime the economic pump. As the number of unemployed rose to the 15 million mark and as the banking and credit structure crumbled, the country voted a new administration into power.

The Roosevelt administration immediately set about the gigantic task of dealing with the depression. Roosevelt called this program the “New Deal." It was opportunist in its approach; if one expedient failed, another

24 Lewis v. Red Jacket Consol. Coal and Coke Co., 275 U.S. 536 (1927), denying certiorari; Intl. Org., United Mine Workers of America v. Red Jacket Consol. Coal and Coke Co., 18 Fed. 839 (1927).

was tried. First inflation was encouraged; then prices were policed. The government spent profusely, restricted its spending, then again spent profusely. Under the "Blue Eagle" program business collusion was encouraged; later such collusion was prosecuted. A program of economic nationalism was promoted, then rejected. There were many minor vacillations in addition to these major changes in policy. As a result of these measures (or in spite of them), recovery set in; but in 1937 and 1938 the economy sagged back again (in what the administration called a "recession"), this time to be rescued by still another policy which was influenced by a Europe again at war, that of “all-out aid to Britain" and "LendLease."

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Depression-born Prolabor Industrial-relations Trends. After the stockmarket crash of 1929, labor was singularly successful in bringing pressure to bear upon lawmaking bodies and employers, with the result that such prolabor legislation as the Federal Anti-injunction Act, the National Labor Relations Act, and the National Fair Labor Standards Act were placed upon the statute books.26 Although it is true that the general attitude of the Roosevelt administration was that of encouragement of labor in its efforts to organize and bargain collectively, it is also true that practically every specific provision of so-called New Deal legislation can be traced to laws enacted prior to the New Deal period. Many of these provisions had been declared unconstitutional or were inoperative because of the strength of the employers and the apathy of the public. But with the coming of hard times came vastly increased interest in the problems of employer-employee relations. The changes in the law represent (incompletely, it is true) the resultant of a new alignment of forces in society. With the rapid increase in unemployment, the needs of wage earners gained the ascendancy. Laws were passed which recognized the belief of a majority of the people that recovery from the business depression would take place if more of the businessman's share of the gains of industry could be diverted to employees and thereby create a greater flow of purchasing power. The volume of laws, cases, and literature on the subject increased enormously.

As existing law was critically examined, it became apparent that several fundamental inconsistencies existed; and legislation enacted subsequent to 1933 was aimed, among other things, at resolving these anomalies, which are listed as follows: 27

25 For a clear picture of this period see Broadus Mitchell, Depression Decade, Rinehart & Company, Inc., New York, 1947.

26 47 Stat. 70 (1932); 49 Stat. 449 (1935); 52 Stat. 1060 (1938).

27 See John R. Commons and John B. Andrews, Principles of Labor Legislation, 4th ed., Harper & Brothers, New York, 1936, pp. 416-419. It should be noted that if a person has a right to do something, speaking in legal terms, the doing of that act is protected by law. A privilege, while not unlawful, is not protected by law. The popular term "right" is synonymous with privilege. This distinction is discussed on pp. 345-346.

1. Although employees had the "right" to join unions and to bargain collectively, employers also had the right to hire and discharge workers; and laws forbidding discriminatory treatment of employees by employers were held by the courts to be an infringement of the rights of employers. 2. Although employees had the "right" to strike for the closed shop, employers had the right to exact individual nonunion agreements from their employees.

3. Although employees had the "right" to organize and strike nationally, employers could legally restrain sympathetic strikes.

4. Although employees had the "right" to "peacefully persuade” during strikes, the public had the right to use the streets; and the collective action of employees, the law held, often conflicted with this right.

5. Injunctions theoretically could be issued impartially against employers and employees to protect property rights, but employees' "rights" were not usually recognized by the courts as property rights.

6. Labor-relations law prior to 1930 had the effect of protecting employers who fought unionization, who refused to bargain collectively, and who tried to break strikes; but at the same time, in theory, the law said the employees had the "right" to organize, to bargain collectively, and to strike. These rights were to be exercised with due respect to the rights of employers, which, of course, emptied the "rights" of employees of much of their meaning.

7. Another anomaly in the law of that period had to do with strikebreaking. While the law held that strikes were legal, it simultaneously held that strikebreakers had the right to work.

It is clear, then, that to resolve these contradictions in the law either the rights and privileges of employers or those of employees had to be restricted. Subsequent to 1933, in the interest of a general program of recovery and under the general theory that a maldistribution of wealth caused the economic crisis of 1929, it was the employer whose rights and privileges were restricted.

The decade of the thirties is of interest in that it marks the introduction of a new form of labor-relations law. A quasi-judicial administrative agency, the National Labor Relations Board, was established. Although the quasi-judicial administrative agency was not new, its use in the field of employer-employee relations was novel. This Board is the initial agency for enforcement of labor's right to organize and bargain collectively (except for labor not under its jurisdiction, i.e., railway labor, labor employed by intrastate business, etc.), and through the Board's administration of the National Labor Relations Act it has become the employer's duty to receive properly accredited employee representatives and to bargain with them. The jurisdiction of the courts has been restricted to the extent that they may not review findings of facts which have been made

in Board hearings, unless such findings of facts are not properly supported by evidence.

Although a clear break cannot be discerned between pre-New Deal and New Deal legislation, a definite change can be noted in the attitudes of the courts in validating much of the prolabor legislation. It should be noted that there has been a definite tendency on the part of the Supreme Court of the United States to widen the scope and implications of the power exercised by Congress over interstate commerce, a tendency that will become apparent to the reader as he follows the Court's decisions discussed in the following pages. Many of these decisions, validating prolabor legislation, have caused surprised comment. Their revolutionary character can be explained, perhaps, by pointing out that they were affected by the same events which initially evoked the legislation. Both the legislation and its validation by the courts were made necessary by the trend of economic development. The depression tended to force a reduction in the lag usually found between the time a need for a law arises and the time one finally is enacted and recognized by effective judicial action.28 Forced to recognize the need for rectifying an obvious inequality in the respective bargaining strengths of employers and employees, Congress enacted, among other legislation, the National Industrial Recovery Act.29 The invalidation of the labor provisions of this Act by the Supreme Court only served to bring to a sharper focus the urgent need for governmental encouragement and protection of labor organization and effective governmental machinery for facilitating the settlement of disputes between employers and their employees. Enactment of the National Labor Relations Act 30 and its subsequent validation by the Supreme Court once more lent encouragement to labor, whose organizations extended their scope and soared to new heights.

The courts have received much well-founded criticism in the past. It has been asserted that their decisions have frequently been made with an eye to precedent rather than to the merits of each case, that they are ruled by the dead hand of the past rather than by the living, urgent necessities of the present. With much recent legislation, however, this has not been true. The courts definitely have been influenced by exigencies (and to some extent, perhaps, by political expediency), and tenuous arguments have often been advanced by the judges to explain why many an apparent reversal has not been a reversal in fact.

28 The reader understands, of course, that statutes can be and often are enacted in the absence of or in advance of need, and that dire need too frequently fails to evoke proper statutory relief.

29 48 Stat. 195 (1933).

30 49 Stat. 449 (1935).

The pendulum of public opinion began swinging away from its preponderant sympathy for labor before the close of the thirties. How far it would have swung had not the United States entered the war is, of course, conjectural. When labor is relatively scarce, conditions are not the best for strong labor organizations. Employees may feel that they can now get along without them, or public sympathy may be alienated because of the high-handed tactics of some too well paid workers whose knowledge of how badly employers need them has gone to their heads. The latter part of the thirties and the first part of the forties were characterized, first, by economic recovery; then by the rearming of the country, by lend-lease business for the warring allies; and finally by conscription for the armed forces and the entry of the United States into the war.

The War Economy of the Forties. Between the invasion of Poland by Germany in 1939 and the bombing of Pearl Harbor in 1941, the United States enjoyed prosperous conditions; and although the nation was assured by the administration that the country would not become involved in the European war, a succession of steps was taken which put the country almost in the status of a belligerent. At the time of the Atlantic Charter (August 14, 1941), when this country became an ally of Britain in all but name, the United States became aware of the threat of inflation. During American participation in World War II, rigid price controls and rationing were imposed, while unprecedented demand for labor developed.

Although public sympathy for labor's cause had slightly cooled prior to the entry of the United States into the war, a pronounced change could be noted a year or so afterward. It had become unpatriotic for labor to picket and strike: in the first place, work stoppages helped the enemy by reducing the supply of war equipment; and in the second place, higher wages (unless for increased productivity) were frowned upon as contributing to inflation.

The law of employer-employee relations as it existed at the time of the raid on Pearl Harbor exhibited only slightly fewer prolabor features than it possessed at the close of the thirties. A vigorous but unsuccessful attack had been made on the Wagner Act. Changes had been forced in the personnel of the National Labor Relations Board, which deemed it expedient to modify its rules somewhat in order to mollify employers. Some of the prolabor legislation of the states had been changed in response to pressure brought by employers and some elements of the public which now believed that prolabor depression legislation had gone too far, but in general the picture at the outbreak of war was little changed. While the United States was functioning as the “arsenal of democracy" and prior to the raid on Pearl Harbor, the President set up by proclama