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Rights Delayed
Rights Delayed
The American State and
the Defeat of Progressive
Unions, 1935–1950
Charles W. Romney
1
1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
9 8 7 6 5 4 3 2 1
Printed by Sheridan, USA
For Susanah
CON T EN T S
Map viii
Introduction 1
Acknowledgments 213
Archival Abbreviations 215
Notes 223
Bibliography of Archives, Microfilms, and Oral Histories 257
Index 263
Map 1
The Fight for the Pacific Canneries, 1935–1950
Rights Delayed
Introduction
organized its members by skilled craft after its origins in 1886, but
by the 1930s several AFL leaders and labor activists outside the AFL
wanted unions to organize the increasing number of industrial work-
ers in mass-production plants. The debate over whether to organize
workers by craft or by industry implied a potential cultural transforma-
tion of union membership. The craft-oriented AFL represented mostly
white Protestant men, while industrial plants employed more African
Americans, women, and recent Catholic immigrants. In 1935 several
unions broke away from the AFL to form the Congress of Industrial
Organizations (CIO) to organize workers by industry. Until the early
1950s, the two rival union federations fought bitterly over potential
members, political programs, and the involvement of the federal gov-
ernment in labor relations. 3
Unions from the AFL and the CIO both sought to represent employ-
ees in the Pacific canneries throughout the 1930s and 1940s. By 1945,
cannery workers faced a choice between the AFL’s Teamsters Union and
the CIO’s Food, Tobacco, Agricultural, and Allied Workers (FTA). The
West Coast branch of the Teamsters differed from many AFL unions by
using a “cross-craft” strategy of organizing workers in industries beyond
transportation, but otherwise the West Coast Teamsters resembled many
AFL unions by opposing many federal programs and attacking its rivals
as communists. Several FTA leaders belonged to the Communist Party,
and the CIO union offered cannery workers a larger role in setting union
policies and stronger rhetorical support for gender and racial equity.4
Workers and organizers described the fight over the Pacific canneries
in political terms in the 1930s and 1940s that linked their local struggle
to the national contest between the AFL and the CIO. Workers and union
officials also used the words “conservative” and “progressive” to identify
themselves. In 1950, Local 78 in Watsonville, California, published a
pamphlet that defined itself as a “PROGRESSIVE union of shed work-
ers run by shed workers.”5 In 1946 a Teamster official from Los Angeles
called the union’s relationship with employers and its collective bargain-
ing agreement “a conservative order.”6 At times, union lawyers, company
counsel, and NLRB attorneys referred to unions with political labels in
their legal briefs. Lawyers for all sides also debated how legal procedure
should be applied to the Pacific canneries. In 1946 NLRB general coun-
sel Gerhard Van Arkel worried about the “the use of Board procedures
to block rather than expedite collective bargaining” in several canneries
in northern California.7 Participants in the struggle to control the Pacific
canneries often expressed their claims in the language of legal procedure,
and often defined the stakes of union competition as a victory for either
conservative or progressive unions.
I n t r o d u c t i o n ( 3 )
The story of workers, unions, and the state in the Pacific canneries
unfolded in three distinct phases. Initially, progressive unions thrived by
embracing the procedural culture of New Deal agencies and the wartime
American state. Between 1935 and 1945, unions mastered the complex
rules of the NLRB and other federal entities by working with government
officials. In 1946 and 1947, however, the emphasis on legal procedure
made the federal state too slow to combat potentially illegal cooperation
between employers and the Teamsters. Workers who supported progres-
sive unions rallied around procedural language to stop what they con-
sidered Teamster collusion, but they found themselves dependent on an
ineffective federal state. In the last phase, the state became even less able
to protect employees belonging to left-led unions after the Taft-Hartley
Act of 1947 barred union leaders from belonging to the Communist
Party. Many leaders of progressive unions refused to comply with Taft-
Hartley’s anticommunist provisions, and those unions lost access to the
NLRB’s procedures. From 1946 until 1950, progressive unions withered
and eventually disappeared from the Pacific canneries as the unions failed
to pay the cost of legal representation before the NLRB. Workers support-
ing progressive unions had embraced procedural language to claim their
rights, but by 1950 those workers discovered that their rights had van-
ished in an endless legal discourse.
This argument connecting the decline of progressive unions to the pro-
cedural orientation of the state extends and refines several lines of scholar-
ship. The main left-led food processing union created a culture of biracial
and ethnic solidarity and suffered from anticommunist attacks, but the
union’s relationship with the state also shaped its initial success and its
eventual decline.8 The issues that consumed the NLRB in Washington,
DC—a hostile Congress, a debate over the reach of labor law, the con-
nection between judicial review and agency procedures—a lso hindered
the NLRB on the ground by instilling a devotion to proper procedure in
the agency’s field offices.9 Administrative agencies like the NLRB gained
some autonomy from the courts by adopting legal procedure internally.10
The resulting legalistic culture, however, made those agencies too slow
to protect certain rights. The story of union conflict and the procedural
state also revisits some issues in the debate over the relationship between
the New Deal collective bargaining regime and the radical potential of
American workers in the 1930s.11 In the Pacific canneries, local unions of
all ideological stances creatively modified the NLRB’s rules and incorpo-
rated aspects of those rules—such as the NLRB’s use of pledge cards to
measure support—into organizing strategies and union bylaws. The New
Deal collective bargaining regime limited the political possibilities of can-
nery workers through the results of the NLRB’s procedural focus: long
( 4 ) Rights Delayed
cases, a state unable to act quickly, and unions unevenly burdened by the
cost of legal representation.
Understanding the defeat of left-led unions helps explain the failure of
progressive politics in America at midcentury. Progressive unions in the
CIO led the fight for social and political change in the 1930s and 1940s.
Ira Katznelson writes of the “New Deal of the CIO” that produced “whole
openings for social change,” openings that closed after 1950.12 The defeat
of the radical wing of the CIO by the 1950s eliminated the leading edge of
American liberalism for a generation.13 Katznelson connects the decline
of the radical wing of the CIO to the emergence of what he calls the pro-
cedural state. Southern conservatives in Congress feared the rising influ-
ence of the CIO within the Democratic Party, helped pass legislation to
stop the growth of unions, and halted CIO activism by subordinating fed-
eral agencies to congressional oversight and judicial review. Katznelson
describes the procedural state as a broker between competing interests.
The NLRB fits this definition in a broad sense, although in the Pacific
canneries the NLRB relied on legal procedure to manage competition
between unions.14 Katznelson’s argument about the procedural state and
the decline of the CIO prompts the question, how exactly did the proce-
dural state damage left-led unions?
The union fight over the Pacific canneries supplies an answer to this
question and provides a closer look at the operation of the procedural
state on the ground. The state hurt progressive unions by focusing on
legal procedure. The phrase “legal procedure” stands for a complicated
system at work in the state.15 Labor organizations encountered a state
much more complex than just a forum for competing private groups. The
NLRB, for example, made sure that its field offices collected a certain kind
of evidence. Unions trained their organizers to gather material that reg-
istered with the NLRB and creatively translated the agency’s rules into
union bylaws. To investigate a claim, the NLRB held hearings, drafted
reports, and issued decisions in a proscribed sequence. Employers and
unions then enjoyed the right to appeal NLRB decisions to the federal
appellate courts, adding a new round of oral arguments and briefs to the
agency’s investigation.16 The sequence of legal forums within the NLRB
and before the federal appellate courts strung out cases for years. This
encompassing system of legal procedure imposed large costs on unions,
which needed to pay lawyers at each stage of the sequence. The system
also made the NLRB dependent on unions to provide legal representa-
tion to workers and to collect evidence for the NLRB. Workers found that
the most damaging aspect of the system came from the time required to
resolve their claims. The state created a maze of legal steps before it could
act. Progressive unions initially mastered this complex system, but then
I n t r o d u c t i o n ( 5 )
suffered defeat when the state proved too slow to protect the rights of
workers.
The book contains three parts. The first part explains the initial success
of progressive unions working with the state from 1935 to 1945. Chapter 1
charts the spread of legal procedure from local NLRB field offices to AFL
and CIO unions in the late 1930s. Unions creatively adapted the labor
board’s rules to their own bylaws and contracts as organizers focused
on evidence that registered with the NLRB. Chapter 2 focuses on the
clash over established AFL unions in northern California between 1935
and 1941. The CIO and the NLRB fought to let workers choose their
own union, while the AFL embedded legal procedure in their contracts
to resist representation elections. Chapter 3 covers the Pacific canner-
ies during World War II. The progressive union Local 78 worked with
regional NLRB attorneys to change the agency’s rules for seasonal plants;
the resulting decisions by the NLRB unsettled several key aspects of labor
law for the Pacific canneries in ways that favored Local 78 and its CIO
allies. Chapter 4 starts with several 1945 strikes by workers in Portland
and Sacramento. The strikes radiated well beyond those cities, altered the
procedural status of the strategically important northern California can-
neries, and led to an election victory in late 1945 that promised CIO con-
trol of the Pacific canneries.
The book’s second part examines the reversal of the CIO victory
between 1945 and 1946 by the AFL Teamsters Union. Chapter 5 moves
the analysis to Washington, DC, and to the NLRB chairman, Paul Herzog,
who confronted the controversy in northern California after a long period
of congressional attacks. The Teamsters used allegations of “forgery,” dis-
charges in the AFL closed shop in northern California, and Congressional
hearings to pressure the Board to dismiss the CIO victory in northern
California. Chapter 6 explores the futile attempts by the NLRB to find a
legal basis to prevent what agency attorneys considered illegal collusion
between the Teamsters and employers. After the NLRB failed to convince
a federal appeals court to stop the operation of the AFL contract, embit-
tered CIO supporters launched strikes in Sacramento and Stockton that
shut down several canneries for weeks but that left the Teamster “blacklist”
intact. Chapter 7 explains how case law and procedural rules constrained
the NLRB’s options in the summer of 1946 and resulted in a second elec-
tion in northern California. Before the vote, the Teamsters operated the
union’s blacklist with impunity, fired many CIO supporters, and threat-
ened to resist any CIO victory with blockades. The Teamsters won a nar-
row victory in 1946 by exploiting the NLRB’s lengthy procedures.
The book’s last part narrates the end of progressive unions between
1946 and 1950. Chapter 8 measures the effect of two national trends on
( 6 ) Rights Delayed
the Pacific canneries in 1946 and 1947: the NLRB’s increasing empha-
sis on industrial stability, and the domestic Cold War’s damaging effects
on left-led unions. While the FTA’s own decision not to comply with the
Taft-Hartley Act left the union’s supporters without the protections of
labor law, the two national developments intensified the effects of the
NLRB’s procedural focus. Lengthy cases exposed CIO supporters to
shifts in the law, and long investigations allowed the Teamsters to col-
lude with employers without penalty. Chapter 9 maps the decline of the
FTA between 1947 and 1950 by illustrating the dependence of both the
NLRB and individual workers on functioning unions. The NLRB aban-
doned strong cases against employers because the FTA could not collect
evidence for the state, and workers lacked the funds to pay lawyers to pro-
tect their rights in NLRB forums. The book’s conclusion assesses the state
and the defeat of progressive unions in the 1930s and 1940s. Progressive
unions thrived between 1935 and 1945 by working through the state. By
1950, however, progressive unions and their supporters had learned that
the procedural state favored conservative unions that cooperated with
companies.
PART I
Legal Procedure in
the Pacific Canneries
L ocal NLRB officials brought the Wagner Act to the Pacific canner-
ies between 1935 and 1941. The NLRB’s field offices focused on legal
procedure in each case by carefully documenting the agency’s conclu-
sions. The emphasis on proper legal procedure spread from the NLRB
field offices to local union organizers, union bylaws, and union rules.
Although Pacific cannery unions developed distinct ideologies, most
unions embedded the NLRB’s procedures in their own rules and used
internal union practices to collect evidence required by the NLRB. In
the late 1930s the NLRB used pledge cards to measure union support in
the canneries, a measure that local unions adopted as part of their own
requirements for membership.
Unions competed most intensely in the Pacific fish canneries in
the first years after the Wagner Act was passed. Unions in fish pack-
ing modified the act’s protection of the closed shop to create contracts
that policed pledge cards. In addition to shaping labor organizing, the
emphasis on legal procedure extended the time required for NLRB
investigations. The resulting long cases pressed unions to pay for
extended periods of legal representation and to support their often des-
titute members. Legal procedure appeared neutral on its face by treat-
ing all unions equally, but in local practice an emphasis on procedure
favored unions with the funds to endure investigations that often lasted
years. In the Pacific canneries in the late 1930s, legal reasoning and legal
procedure framed the NLRB’s local operations and encompassed each
union’s local organizing.
( 10 ) Rights Delayed
NLRB regional attorneys carefully assembled their case files when faced
with employer resistance to the Wagner Act in the Pacific canneries. The
local emphasis on legal procedure came from several sources. Between
1935 and 1937 the entire agency worked to convince the Supreme Court
of the Wagner Act’s constitutionality.1 The NLRB also reacted to the
Supreme Court’s Morgan ruling on procedure in administrative agencies
and (after 1938) reacted to the Smith Committee’s attacks on its opera-
tions in Congress by ensuring the agency’s procedures could withstand
judicial and congressional scrutiny.2 Many NLRB officials did not need
external threats to justify their devotion to legal reasoning. Throughout
the 1930s, many government attorneys—a long with many federal judges
and legal scholars—believed that good administration required each gov-
ernment agency to practice proper legal procedure. 3 Local NLRB officials
in the Pacific field offices in Seattle, San Francisco, and Los Angeles had
additional reasons to stress a careful, legal approach to cannery cases.
Until April 1940, some employers claimed that the canneries fell outside
the NLRB’s jurisdiction because of the agricultural nature of food pro-
cessing. This additional employer argument over the agency’s jurisdiction
forced local NLRB attorneys to collect evidence on the industrial nature
of canning. For all these reasons, NLRB regional officials focused on legal
procedure when bringing the Wagner Act to the Pacific canneries.
Canning employers had good reasons to legally resist the NLRB. Food
processing differed from other industries because of its seasonal schedule
of production, so that companies packed different fruits and vegetables
during specific times of the year. Cannery workers migrated with the sea-
sons, traveling throughout the year to canneries and sheds of peaches,
tomatoes, and lettuce. This seasonal cycle of packing food made the tim-
ing of collective bargaining very important. Workers without a contract at
the start of a packing season had a limited period to convince employers
to negotiate. The short duration of packing seasons for each fruit and veg-
etable also gave employers wary of unions an incentive to extend the reso-
lution of an NLRB investigation.4 In 1938 NLRB economist David Saposs
noted the way canning firms sought delays when faced with a NLRB
investigation: “Employers are trying to prolong hearings until the season
is over.”5 In addition to extending NLRB hearings, employers opposed
to unions also sought to delay the resolution of investigations by appeal-
ing NLRB decisions to the federal appellate courts. Usually an appeal for
judicial review pushed the resolution of an organizing drive into the fol-
lowing packing season or longer, giving canning firms at least one more
“pack” without a collective bargaining agreement. Seasonal production
L e g a l P r o c e d u r e i n t h e Pa c i f i c C a n n e ri e s ( 11 )
and employer incentives for delay in food processing elevated the impor-
tance of time. In most industries a series of long delays hurt workers, but
in food processing even a short delay could mean workers lacked union
representation for a year or more.
The strategy of extending investigations and appeals worked for some
firms. For example, lettuce operators resisted employees trying to create a
union (Fruit and Vegetable Workers’ Union of California, Local 18211) in
Salinas and Watsonville in 1936. The companies hired private detectives
to spy on the union, used gas against union supporters on a picket line,
and convinced local police to attack workers with clubs. In response, the
NLRB first turned to the Federal Bureau of Investigation. Attorneys in the
NLRB office in San Francisco asked the FBI and the Justice Department
to run criminal background checks on various security guards hired by
the companies.6 After receiving the FBI report and conducting its own
investigation, NLRB attorneys in San Francisco submitted the case to the
Board in Washington. In its decision the Board noted that the “impres-
sion of these events obtained from the record is one of inexcusable police
brutality, in many instances bordering upon sadism.” 7 In describing the
violence, the Board relied on legal language, describing its “impression”
from the legal “record.” In addition to noting the violence, the Board ruled
that the companies had engaged in a long list of unfair labor practices.
The lettuce firms appealed the NLRB’s ruling to the US Court of Appeals
for the Ninth Circuit, and in 1939—three years after the initial organiz-
ing drive—the court ruled that the lettuce companies had committed
unfair labor practices in attacking their employees. The Ninth Circuit did
not agree with the NLRB, however, that Local 18211 in Salinas enjoyed
enough support among employees to force the companies to recognize
the union.8 Three years after the initial organizing drive and violent
attacks, the federal courts forced union organizers in the Salinas lettuce
sheds to start over.
To combat employer resistance, NLRB officials in the Pacific field offices
took the necessary time to collect evidence for possible judicial review of
their cannery cases. The NLRB sent a memo to all its field offices in 1938,
stressing the need to prepare for potential court review: “The record taken
at the hearings before the Trial Examiners will in most instances contain all
the evidence in the case, and will be the record on which the United States
Circuit Court of Appeals will base its determination, if the case is taken
to that Court.” The memo emphasized the need for an extensive “record,”
noting that “the importance of having the record as complete as possible
can readily be seen.”9 A complex investigation of dried fruit employers in
California’s Santa Clara County in 1938 prompted the chief economist
of the Board, David Saposs, to explain the need for legal documentation
( 12 ) Rights Delayed
to the San Francisco field office: “Past experience has demonstrated that
when material of this sort is not introduced into the record but reserved
for brief, it is extremely difficult to get such data from sources of which
the court will take judicial notice. I therefore urge that such material, if it
is to the used, be placed in the record.”10 Saposs wanted the San Francisco
office to collect legal evidence well before any employer appeal, so that the
“record” contained information that would register with the judiciary.
The assumption of judicial review and the need for a complete record
did not stem from any reversals before the federal courts in cannery cases.
Some federal appellate circuits reversed a number of NLRB rulings, but
from 1935 to 1941 the courts did not completely overturn a Board decision
concerning food processing in the Pacific region.11 Nonetheless, despite
the absence of adverse judicial review, local NLRB attorneys prepared
each case with procedural care. The three Pacific field offices focused on
extensive documentation in cases beyond food processing. NLRB offi-
cials in the Seattle field office took just as much care over an investigation
involving the Teamsters and the International Longshore and Warehouse
Union in the late 1930s as they did over investigations involving fish pro-
cessing.12 Local agency officials assumed that they needed to prepare their
cases with extensive documentation and proper procedure for possible
judicial review.
The attention to legal detail often worked. Immediately after the
Wagner Act was passed, company lawyers argued that the NLRB had
no jurisdiction over packing fruits and vegetables, because packing food
did not involve interstate commerce. In 1937 the Ninth Circuit upheld a
Board decision that canned food crossed state lines. After their arguments
about interstate commerce failed, companies looked to the exception in
the Wagner Act for farmworkers (the law excluded agricultural employ-
ees).13 To combat these company claims, NLRB regional attorneys col-
lected evidence on the industrial nature of food processing. In 1938 the
NLRB rejected arguments by seafood employers in Alaska and defined
canning employees in seasonal industries as industrial workers involved
in nonagricultural jobs. The Board used the Alaska canning precedent in
1939 and 1940 to rule against several other companies that claimed their
employees worked on farms.14 NLRB staff worried, however, that com-
panies would continue to contest their jurisdiction over food production
until the federal courts confirmed the Board’s ruling.
NLRB attorneys focused on several companies that packed citrus in
southern California. In Pasadena, California, a group of orange pack-
ers asked its members in 1938 to “correlate our program for exemption
of agricultural labor under the National Labor Relations Act.”15 A larger
group of companies that packaged oranges in California’s North Whittier
L e g a l P r o c e d u r e i n t h e Pa c i f i c C a n n e ri e s ( 13 )
indefinitely.” Two months earlier the director of the Los Angeles NLRB
office, Towne Nylander, explained how any delays would hurt the CIO
organizing drive: “The union feels that if the matter is delayed six months
or so, their organization will be completely wiped out.”33 Both Walsh and
Nylander complained that California Walnut’s lawyers used the NLRB’s
legal procedures to prolong the case. CIO organizers had evidence of
employee support (pledge cards), they had labor law on their side, and
they had NLRB attorneys as allies. But CIO organizers and NLRB attor-
neys alike feared a long legal process.
Despite these fears of procedural delay, the CIO persisted in organiz-
ing California Walnut for twenty more months. By January 1940 the
NLRB and the company had worked out an agreement to hold elec-
tions. California Walnut had fired eight CIO supporters and refused
to rehire the eight workers (the CIO and the NLRB field office in Los
Angeles called this refusal to rehire a “blacklist”). 34 The proposed agree-
ment did not award back pay to those CIO supporters on the California
Walnut blacklist, and the CIO opposed it. William Walsh of the NLRB
office in Los Angeles described the CIO stance to the NLRB staff in
Washington: “The Union feels that because of the reduced circumstances
of the individuals involved, because, as they contend, by black-listing
activities of the Company, that, as a matter of principle, there should be
some provision for back pay.” The fired CIO supporters faced destitution.
Estelle Frankfurter at the NLRB headquarters in Washington echoed
Walsh in describing the financial plight of the discharged employees as
being “based on the reduced circumstances of the workers growing out of
blacklisting by the company.”35 The CIO refusal to accept the agreement
points out how the NLRB’s lengthy legal procedures assumed unions had
resources. California Walnut could afford the lawyers needed to operate
in the NLRB’s legal process. The CIO paid for their own lawyers, yet the
CIO also needed to provide for its members, who had been without work
for twenty months. Delays in deciding the case drained the resources
of the CIO and favored the company. At California Walnut the CIO
demands paid off, however, as the NLRB convinced California Walnut to
include back pay in the settlement. 36 Yet the costs of complying with the
NLRB’s legal procedures would continue to limit both the ability of the
CIO to organize unions and the ability of cannery workers to choose their
own representatives.
Moreno and Ray won a victory in an NLRB certification election
at California Walnut, but at other times their CIO union struggled to
conform to the NLRB’s legal procedures. The NLRB required unions
to observe fixed deadlines for the submission of briefs and evidence,
and the NLRB required union representatives to appear at various
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