His championship of regularity in employment and of protective legislation clearly marked Louis Brandeis as a friend of labor. Yet despite his opposition to big business and its abuses, he should not be mistaken for an unquestioning champion of labor or of labor unions. Here as in all areas of his life and work, Brandeis sought balance, rejecting the views of both those who trumpeted the unrestricted rights of business and property and those who saw powerful labor unions as the only antidote to corporate abuses. In the years that Brandeis worked as a lawyer and reformer, he came into frequent contact with labor, learned a great deal about the workplace and labor-management relations, and had opportunities to implement novel solutions to problems between workers and employers. Workingmen and workingwomen trusted him and applauded his role in Muller and other cases to defend hours and wages laws, but labor leaders like Samuel Gompers differed radically from Brandeis in regard to the rights and responsibilities of labor unions, and also scientific management.
AT THE TIME Brandeis began to practice in Boston, the law tended to look on labor unions with suspicion. In many states, courts found that striking workers could be charged with the common-law crime of conspiracy. Although Chief Justice Lemuel Shaw of Massachusetts wrote one of the rare decisions holding that workers could legally strike without committing conspiracy, few judges agreed with that view. Prosecutions for conspiracy did, however, slow around the time of the Civil War; strikes themselves remained technically legal, but convincing a jury that included workingmen of conspiracy proved increasingly difficult.
Beginning with the great railroad strikes of the 1870s, however, judges gave employers a far more potent weapon—the injunction—which did not require either proof of conspiracy or a jury trial. The injunction—an order by a judge to stop a strike or other labor demonstration—could be granted quickly, and if union leaders refused to obey, they could be summarily jailed for contempt of court. The Supreme Court endorsed the use of injunctions, no matter how broadly worded, in the Debs case of 1895, and not only gave businessmen and their lawyers, as well as conservative judges on the federal bench, a stronger weapon to use against labor but also expanded the jurisdiction of federal courts to include local labor disputes, even if they did not involve interstate commerce.
Anticipating what the economist John Kenneth Galbraith would later call “countervailing power,” progressives supported labor unions and collective bargaining as a means of giving working people parity with their employers in the bargaining process. Reformers believed that the state’s police powers justified intervention in contractual disparity; most judges, however, would have none of this, believing that mere inequality in the bargaining process, without specific evidence of health or safety considerations, did not justify state interference. The potential power of large labor unions scared both industrialists and conservative judges in the same way that the power of big corporations alarmed reformers. The militant American Federation of Labor struck them as a threat to individual rights and to a market in which employer and employee could freely negotiate a labor arrangement. The fact that such a market had disappeared years earlier did not matter to the courts, any more than that the economic model of Adam Smith, which they continued to use to describe the American economy, had long since vanished as well.
While courts at both the state and the federal levels gradually accepted the need for protective legislation, as the Supreme Court did in Muller, they continued to oppose labor unions, and this bias endured until the end of the 1930s. Only when Congress passed the Norris–La Guardia Act of 1932 did federal courts lose their power to issue injunctions in labor disputes, and it took the National Labor Relations Act, or Wagner Act, of 1935 to secure labor’s right to organize and to bargain collectively. To say that prevailing business and public sentiment in the early twentieth century looked suspiciously at labor unions would be an understatement.
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ASIDE FROM HIS WORK with the McElwain Shoe Company, Brandeis’s first direct contact with labor unions seems to have been in connection with the great anthracite coal strike of 1902 and came about at the suggestion of Henry Demarest Lloyd. An influential reformer, writer, and activist, Lloyd had written Wealth Against Commonwealth in 1894. Considered the first muckraking work, the book exposed the machinations of the Standard Oil Company and how it used its monopolistic power to crush competitors. Brandeis had read the book shortly after it came out and would cite it frequently.
Trouble had been building in the Pennsylvania coalfields since May 1902. Over fifty thousand anthracite coal miners in northeastern Pennsylvania had joined the United Mine Workers and walked off their jobs, demanding a 10 to 20 percent increase in pay, recognition of the union, an eight-hour day, and other benefits. Six major railroads owned four-fifths of the coalfields, and two years earlier the roads had reluctantly given in to Mark Hanna’s insistence that they settle a strike and not endanger William McKinley’s reelection. Hanna had since retired, and the railroad presidents, headed by the truculent George F. Baer of the Reading, adamantly opposed even talking to the unions. Assuming that the public’s demand for coal would eventually force the unions to back down, the railroads closed the mines, rejected all offers at mediation, and waited for the union to collapse. But the union president, the able John Mitchell, played his cards well. Financed by contributions from other unions, the coal miners held out. Mitchell articulated a public relations campaign exposing the hardships of mine work and the abuse suffered by the workers, so that both the Hearst and the Pulitzer chains, as well as many independent newspapers, backed the union and condemned the owners. As winter approached, however, with empty coal bins in schools, hospitals, and private homes, the price of coal rose from the usual $5 a ton to $14, and the demand grew for action to settle the strike.
Baer rejected a proposal for arbitration and, in a statement that angered many people, declared that “the rights and interests of the laboring man will be protected and cared for, not by the labor agitators, but by the Christian men to whom God in His infinite wisdom has given the control of the property interests of the country, and upon the successful management of which so much depends.” Even conservatives rejected this Neanderthal view, and by early fall some newspapers had begun suggesting government control of the mines or, failing that, a federal law mandating binding arbitration.
Although President Theodore Roosevelt had initially refused to intervene, the growing public demand for action led him to convene a meeting at the White House in October, where, backed by J. P. Morgan, he forced the coal operators—through a threat to send troops and have the federal government take over the mines—to agree to an impartial investigatory commission and then to accept its findings. The workers in turn agreed to go back to work on 23 October.
Lloyd, a strong supporter of labor unions, had become involved with the United Mine Workers in their strike. He had earlier met Brandeis through a common acquaintance, the Boston editor and lecturer Edwin Doak Mead, and contacted him in late November 1902. Lloyd asked for his help in putting together the miners’ case that would be presented to the commission. Although Brandeis had little prior experience in labor matters, he immediately agreed and, as he usually did, demanded information. He asked Lloyd to send him a variety of materials and then put his office staff to work researching the relevant federal and state laws that bore upon the mines and up on labor.
In early December he went to Scranton, Pennsylvania, and toured the coalfields with Lloyd and Clarence Darrow, the great Chicago lawyer who served as counsel to the union. Initially, Darrow and Lloyd wanted Brandeis to prepare a brief to be submitted to the commission arguing that the companies had earnings high enough to support the workers’ demands, and for this he scoured the annual reports filed by the railroads with the Interstate Commerce Commission. This required a great deal of work, and Darrow rather tentatively asked what the fee would be. Brandeis promptly replied, “I shall be glad to give such assistance as I can and shall want no compensation other than satisfaction of having aided a good cause. I will let you have a memorandum of any disbursements.”
Clarence Darrow
Brandeis worked quickly, but be cause of other commitments could not return to Pennsylvania to meet personally with Darrow and Mitchell. He sent them a memorandum brief outlining the major points on 12 December, and a few days later a more elaborate law memorandum that detailed what he had been able to find out about the law and the rail-owned mines, of which, he declared, little existed. But Pennsylvania, like Massachusetts, did have some laws on the books regulating what other properties railroads might own in addition to their rights-of-way and rolling stock, and these did not include coal mines. Quite possibly, therefore, the railroads’ very ownership of the mines might be illegal.
Although he doubted that either the unions or the railroads would act on his suggestion, Brandeis found a familiar evil present in the coalfields, irregularity of employment. His investigation into the coalfields found that the miners averaged only 181 days of work a year. “I feel very strongly,” he told Darrow, “that one of the great evils from which the employees suffer is the lack of continuous occupation, and that it would be possible for the railroads, by some change in their method of doing business … to run their mines continuously, and with a practically average output each day.” Coal mining, he believed, “is preeminently a business in which steady employment ought to be an industrial possibility.”
Ultimately, despite all the work he put in, nothing came of his efforts. The railroads cleverly refused to assert that they could not afford the raise, thus forestalling any inquiries by the commission into their financial status. The last thing the railroad owners wanted was a public airing of their finances, which would have shown an already-hostile public that, with their very large profits, they could easily afford to meet the workers’ demands. Brandeis had prepared to present his brief and testify before the commission, but it refused to hear anything regarding railroad income or to listen to any charges regarding the railroads’ possibly illegal ownership of the mines. Disappointed that his work had gone for naught, he philosophically suggested to Lloyd, “Perhaps at some other time and in some other manner we can bring the facts effectively to the attention of the public.”
The commission, although not hearing from Brandeis, did hold extensive sessions, and in May 1903 awarded the miners a 10 percent increase in pay, reduced hours from ten per day to nine in most instances and to eight in some jobs, but declined to recognize the union. In addition, to cover the increased labor costs, the commission recommended a 10 percent raise in the price of coal, which the mine owners quickly accepted. Today the strike is remembered primarily for the activism Theodore Roosevelt displayed in threatening to take over the mines, although he had not a shred of constitutional or statutory authority to do so.
Samuel Gompers, 1911
BRANDEIS’S SOLUTION to the McElwain difficulties had drawn the attention of local labor advocates, and in 1902 he found himself invited to debate Samuel Gompers, the president of the American Federation of Labor, on the question “Shall Trade Unions Be Incorporated?” The program, under the auspices of the Economic Club of Boston, took place in the Tremont Temple on 4 December 1902, just before he left to tour the coalfields in Pennsylvania. It is the first time that Brandeis spoke publicly on his views about trade unions, but over the next few years he gave several addresses on organized labor and the issues confronting it; when he did so, he spoke from growing experience.
Labor unions opposed incorporation, since they would then have been liable to monetary damages in suits; as unincorporated associations of individuals, they stood relatively immune from this danger. Brandeis knew ahead of time, therefore, that an argument for incorporation would give the impression that he opposed unions. He started out trying to assuage this fear, saying that he not only favored unions but believed they had been instrumental in securing better hours, safer conditions, and higher wages for workers and in protecting women and children from “industrial oppression.” Moreover, all of society, not just the workers, benefited from these achievements, and although many people did not realize it, employers also gained from union efforts to humanize the workplace. He quoted a “very wise and able” railroad president who said, “I need the labor union to protect me from my own arbitrariness.”
Unfortunately, he continued, some in the labor movement acted irrationally and irresponsibly, and this reflected badly on all union members. The struggle to attain great ends “had often been attended by intolerable acts of violence, intimidation and oppression.” Nonetheless, the goals of the labor movement, the improvement of the lives and working conditions of millions of men and women, could not be denied, and no greater instance of “enlightened self-sacrifice on so large a scale” could be found than when large numbers of workers voluntarily gave up their employment because their employer refused to recognize a union. “If you search for the heroes of peace,” he told the audience, “you will find many among humble workmen who have braved idleness and poverty for principle.”
Although the essence of a debate is to win the audience to one’s position, Brandeis adopted none of the debater’s tricks—no grandiose gestures or phrases, no sly undercutting of the opponent’s points. Rather, he seems to have attempted to engage the audience in a conversation, talking to them calmly, almost dispassionately. He stood next to the podium, one arm resting on it and the other hand in his pocket. He and Gompers did not appear as enemies, he seemed to say, but rather all of them, including those who had come to listen, wanted to learn what would be best for unions and their members in the noble search for improving the lot of the nation’s workers.
The problem, he explained, is that when strikes involved lawless conduct, the workers forfeited public sympathy. “The American people with their common sense, their desire for fair play and their respect for law, resent such conduct.” Brandeis did not defend so much as explain the injunction and its use. Employers could not afford to wait until their property might be damaged or their businesses totally disrupted, especially by lawless acts, because what remedy would they then have? The injunction, moreover, had force behind it: imprisonment for any and all who disobeyed.
The question confronting labor unions, then, was how to neutralize this weapon. While an unincorporated union enjoyed immunity, it tended to make both officers and members reckless, committing lawless acts that alienated the public. Brandeis believed incorporation of unions to be the answer. An incorporated union would be a legal entity, capable of being sued but also of defending itself. While an employer could take a union to court, the union could then fight back, and in doing so expose the employer’s guilt. There would be a jury, before which the union could explain why it had acted, and which would surely be more sympathetic than a single judge handing down an injunction at the behest of an employer.
One suspects that Brandeis here spoke more from hope and optimism than from a real grounding in the facts of life as they applied to unions at the turn of the twentieth century. Injunctions could still be issued, whether unions were incorporated or not. The fact that they could seek a jury trial meant little, since factory owners saw as their immediate need the necessity to protect their property and to undermine the unions, attitudes that would not be affected one whit by incorporation. In fact, the issuance of injunctions did not stop until Congress took away the power of federal courts to issue labor injunctions, and the abuse of labor unions continued until the federal government stepped in to back the right of workers to organize and bargain collectively.
Brandeis claimed to speak as a friend of labor, and there is no doubt that he saw himself that way. When it came to matters he considered moral in nature, such as corporate activities that defrauded the public, he could be uncompromisingly rigid and admired the Greek notion of balance, of finding a mean between extremes. He considered unions useful organizations, working to improve the lives of their members, but that did not mean he would unquestioningly accept all they did as legitimate. He also believed employers had rights and that the law should protect private property, but that did not lead him to an unthinking endorsement of injunctions and other anti-union devices. Just as private corporations had to act responsibly and in the public’s interest, so, too, did labor unions. That evening, according to the Boston Post, a majority of the audience in the Tremont Temple seemed to agree with him.
OVER THE NEXT SEVERAL YEARS Brandeis grew more interested in labor matters, although he did not get involved as he did with the Boston Elevated or the New Haven. He saw savings bank insurance, however, not just as a means of reining in the big companies but also as a way to provide an essential service to working people at an affordable price. In that struggle he successfully brought in labor leaders and unions as part of the Savings Bank Insurance League, and their numbers, if nothing else, helped to sway skeptical lawmakers.
During these years Brandeis came into contact with union leaders such as John Tobin, president of the Boot and Shoe Workers’ Union, and nonunion labor activists such as Mary Kenney O’Sullivan of Chicago’s Hull House, who had come to Boston to help organize women’s trade unions, and he made it clear during some local labor troubles that his sympathies lay with the workers. At the same time he also insisted that unions should act responsibly and, when they did not, took them to task, as he did in the 1904 printers’ strike, when he served as counsel to the Boston Typothetae, the association of print shop owners.
In February 1901 the Typothetae and the Boston Typographical Union No. 13 had signed a three-year contract fixing the minimum wage at $16.00 a week for the first year and $16.50 for the next two. Before the contract had expired, the union demanded that the minimum wage be raised in 1904 to $19.00. Management in turn offered $17.00, and the typographers went out on strike. As Brandeis noted, the strike “was shockingly bad business,” because if it lasted just three weeks, the workers would have lost the entirety of their dollar-a-week demand. Moreover, the union had no complaints about working conditions, hours, or any of the other issues that unions frequently fought about. Then the union did something that, according to Brandeis, “shocked the conscience.”
The International Printing Pressmen and Assistants’ Union, which represented non-typographical workers in the shops, had signed a four-year contract with the Typothetae that expressly forbade sympathy strikes. Martin Higgins, the head of the striking Boston Typographical Union, offered strike benefits to the second union that, in many instances, exceeded their wages, to induce pressmen and feeders, who had no grievances, to go out on strike. This, Brandeis declared, “was morally wrong. We believed it to be also illegal.” Upon Brandeis’s recommendation as their counsel, the Typothetae went into the Supreme Judicial Court of Massachusetts seeking redress, and the court issued an injunction against the strike. Although he believed the injunction to be a poor tool, in the absence of conscientious behavior by the union, he stood ready to utilize it on behalf of his clients.
The injunction marked the beginning of the end, but the real end came in a way far more humiliating to the workers. After the strike had continued five weeks, “and the men had lost twice the paltry sum for which alone they struck,” the president and members of the executive committee of the International Typographical Union came to Boston to investigate the situation firsthand. They soon realized that the local leadership had erred grievously, and immediately called off the strike, accepting the $17 figure that the owners had originally offered. It was an ignominious end for Higgins and the local leaders, and for Brandeis an example of how labor unions ought not to act.
The Typothetae’s annual banquet that year thus became a victory celebration, and they invited the man who had guided them through the fight to be their speaker. Brandeis knew his audience and believed that his clients, if not in the league of a William McElwain, nonetheless had over the years treated fairly with labor. Although they believed in an open shop, they also recognized the unions as bargaining agents for their workers, and ran their businesses with a concern for safety. So after congratulating them on a well-deserved victory, Brandeis turned to the future and told them what he believed would be necessary to make it an era of peace and prosperity. He laid out what he termed “broad principles which, in my opinion, should govern the relations of employer and employee in all branches of industry.”
First, there had to be industrial liberty, which meant that employers could no longer act as masters expecting their workers to be serfs. “Industrial liberty must attend political liberty,” and here we have the first statement of an idea that Brandeis was to develop over the next ten years. Political freedom cannot be built upon an economic base in which one group exercises complete domination over another, or in which economic opportunities are denied. The prosperity of the country, the vitality of its industry, would depend on how fairly employer treated employee, and how willing employers would be to give workers a say in the workplace.
Brandeis may well have had in mind the Filene’s department store experiment in cooperation between management and labor. The Filene brothers, who also happened to be Brandeis clients, had founded the Filene Cooperative Association in 1901. The store experimented with such then-radical ideas as the employees’ power to veto certain management policies, employee representation on the board of directors, and a free medical clinic. As a result, the store had prospered and had been free from labor strife. Brandeis monitored the enterprise, both for professional and for personal reasons, and often spoke to the workers as part of a lecture series they established to learn more about public affairs.
Second, the right of labor to organize ought to be recognized by law as well as by employers. Little possibility existed that optimal working conditions, a necessity for peace and prosperity, could be achieved without the work of the unions, nor could there be industrial democracy without the workers having a venue for their expression. While some employers feared strong unions, Brandeis assured his audience that strong unions acting honorably and responsibly would be the employers’ greatest aid in securing the best work from their employees. Therefore, employers should not be reluctant to negotiate with union leaders. With honor and fairness on both sides, employers as well as employees would benefit.
There would, of course, be difficulties, issues on which labor and management would not see eye to eye. Brandeis recalled a story from his law school days, when “a very able man” who taught the law of partnership asked the class, “What shall be done if a controversy arises between partners?” One student after another suggested a legal remedy—a receiver, an injunction, a dissolution. “No,” the professor replied, “they should try to agree.” In essence, Brandeis told the Typothetae, they and their workers constituted a partnership, and unless both sides could go forward in harmony, their joint business ventures would suffer.
This notion that workers and owners formed a partnership would be refined by Brandeis for the rest of his life. He did not, of course, mean that they stood as actual partners, the way he and Sam Warren had been. He understood that in the sort of business that he represented—small-to middle-sized enterprises like a press shop or a department store or a shoe factory—unless the owners listened to worker complaints, unless they treated workers fairly, unless they allowed their workers to form a union, they would never get the full benefit of their workers’ skills and abilities. Over the years his notion of industrial democracy expanded, and he grew more interested in the cooperative movement.
But although he favored the right to organize into unions and to bargain collectively, Brandeis never abandoned the theme he first enunciated in the debate with Samuel Gompers, and he ended his talk to the Typothetae on that note. For the partnership to succeed, for employers to recognize unions and to treat fairly with them, unions in turn had to act honorably and abjure acts of lawlessness and violence. Labor deserved a place at the table, but only if it practiced good table manners.
BRANDEIS EXPANDED ON these ideas, and yet, despite his role in the printers’ strike, labor continued to see him as a man who respected labor and whose ideas on the rights of workers did not differ significantly from their own. In January 1906, for example, he spoke to the New England Civic Federation, an association of public-minded businessmen and professionals, on the necessity for shorter hours. He talked about relief from long workdays not in terms of a reduced strain on the workers but rather in terms of the worker’s need to have time to enjoy life, to have recreation, and to be able to partake in civic functions. The notion of industrial democracy applied both within the workplace and without.
Brandeis said on many occasions that the highest office a person could aspire to in a democracy was that of citizen. To be a citizen, however, involved not just rights but responsibilities. If one wanted to enjoy the fruits of a free society, then one had to fulfill the civic duties required, such as being abreast of current issues, attending public meetings of school boards or town councils, and, of course, voting. If people worked twelve or fourteen hours a day, how could one expect them to have the energy or the opportunity to fulfill their responsibilities, not just as citizens, but as parents and members of their communities? Shorter hours, therefore, went far beyond the matter of the workday and affected the type of society we would have.
The following month, when he addressed the annual meeting of the Boston Central Labor Union, he took his message of support for unions and responsible action directly to the more than nine hundred delegates present. Unions had made many strides in the last few years, he said, and he applauded the greater acceptance that unions now had in the public’s mind. But for labor to progress even further, he suggested, it needed to adopt some basic principles.
First, unions should strive to secure a share of all the profits of a company beyond basic payouts, such as cost of materials, overhead such as plant and machinery, operating costs including utilities and taxes, salaries to management, and a fair return on investment. Beyond these fixed costs, workers ought to have a substantial share in the balance, or what we would today call profit sharing. Ironically, those who condemned Brandeis in 1916 as unfit to sit on the bench because of his alleged radicalism never brought up this speech; in terms of labor policy in 1906 he was indeed making a radical suggestion.
In order for workers to enjoy these fruits, however, unions had to do all they could to make businesses grow and operate more efficiently. There should be as few work stoppages as possible, and if workers came up with ideas as to how to make their labor more productive, these should be shared with the management. Unions should never seek to limit the production of individual workers. If some men or women worked harder or faster than others, they should be rewarded for doing so, and not made to work at the level of the least productive. If workers did this, if they labored diligently and honestly, then there would be no need for industrial espionage, the use of spies by management to see who shirked and who caused trouble. Trade unions, Brandeis argued, should teach a worker that it is a disgrace to manhood to require watching.
Finally, but certainly not least, unions should demand steady work. He repeated his belief that no matter how well paid workers might be, if they could not get steady work, then good wages for irregular work meant nothing. Time and again he would repeat this theme. “For every employee who is steady in his work,” he once said, “there shall be steady work. The right to regularity in employment is co-equal with the right to regularity in the payment of rent, in the payment of interest on bonds, in the delivery to customers of the high quality of product contracted for…. No business is socially solvent which cannot do so.” The idea of profit sharing never caught on in a large way with American business, and workers did not receive a significantly larger share of industrial revenues until the heyday of unionism after World War II. Then unions, whose legal status had been confirmed by federal law, allowing them to act free from the fear of injunctions, exercised the muscle of their numbers, forcing companies to pay higher wages and to add fringe benefits such as retirement and health plans. While Brandeis would have applauded the fact that workers received better pay, and that most businesses could operate on a year-round basis with few seasonal layoffs, he would have argued that labor had not kept its share of the bargain he had proposed. Unions did not allow for individual workers to excel or to earn more, and in fact tried to keep all workers producing at a common level. Not until the economic crisis of cheaper imports, especially from Japan in the 1980s and 1990s, did more than a few American companies adopt policies seeking worker input in order to increase productivity. The fact that strong unions could act as badly as big companies, however, would not have surprised him.
ONE AREA WHERE Brandeis and labor parted company involved scientific management, which he believed in strongly and labor detested with equal fervor. Whereas Brandeis saw the idea as a means by which workers and management together could achieve the highest productivity with more money for both, labor saw it as a speedup, where they would have to work faster and harder for less reward.
While Brandeis was working on a problem for William McElwain, one of the shoe company’s supervisors called his attention to an article by Frederick Winslow Taylor titled “Shop Management” that had appeared in the Transactions of the American Society of Mechanical Engineers in 1903. Intrigued by Taylor’s ideas for promoting greater efficiency, Brandeis looked for other materials and soon came upon the works of Harrington Emerson, Henry L. Gantt, and Frank Gilbreth, all of whom he would work with in his 1910 call for American railroads to adopt principles of “scientific management,” a name that he suggested and that soon gained popular acceptance.
Taylor and others worked out the basic premises of scientific management in the first decade of the twentieth century. Taylor saw that in the modern factory, much of the work was rote and repetitive; machines had replaced craftsmen, and the main job of most factory workers involved feeding materials into and tending the machines. But there still existed a large amount of work involving little more than brute force, the moving around of heavy articles or the casting of pig iron. Taylor believed that if one scientifically analyzed a job involving physical labor by breaking it into its components, then one could rearrange the manner in which the workers did the tasks to make them more efficient. This might involve changing the order of the tasks, the use of different tools, or the number of men on a job. Taylor went into the federal arsenal at Watertown, New York, using a stopwatch to time how long it took to do each chore, and then suggested a plan to restructure the work.
Taylor and followers like Frank Gilbreth (for whom Brandeis wrote the foreword to his Primer of Scientific Management in 1914), as well as advocates such as Brandeis, understood that people had different abilities and that the most efficient way for one person to work might not be the same for another. They also understood that the economic interests of labor and management were not identical, so that workers could well resent any plans that increased the profits of the owners at their expense. Taylor and others constantly argued that scientific management could not succeed unless the workers understood that they would share in the profits generated by their increased productivity. While that may have been the ideal, in practice managers who adopted parts of Taylor’s ideas essentially tried to make their workers as machinelike as possible, and the greatest success would be found in the assembly line pioneered by Henry Ford. Each worker had one simple task that he or she would do over and over, such as tightening a nut on a wheel or installing a fender. The work became drudge labor, resented by workers as demeaning.
Scientific management fit into a larger movement within progressivism that sought to replace human irrationality with science and efficiency. Brandeis had been caught up as early as law school in this vision, when Langdell and others wanted to make the study of law akin to scientific investigation. In his fight with the New Haven, he insisted that basic rules of accounting, which he treated as a science, could not be ignored, and in Muller he presented a brief that invoked the latest scientific findings about women and labor.
Like Taylor, Brandeis saw scientific management not as a discrete process but as part of the larger question of labor-management relations. In his talk to the Central Labor Union, Brandeis had balanced his call for workers to share more in the profits with a demand that they work to their fullest potential to increase the company’s earnings. In talking to the Typothetae, he had chastised labor for acting illegally and immorally, but still urged the printers to recognize the unions and to treat with them fairly. So, too, scientific management could not be a one-sided commitment. Owners could not expect to set up a regimen that made their workers more productive without at the same time sharing with them the fruits of their additional labor. “The workman,” he explained, “is called upon to do the highest work of which he is capable, and also because in doing this better work he secures appropriate and substantial recognition and reward.”
It sounds idealistic, of course, but Brandeis always believed that idealism could have pragmatic benefits. The McElwain factory, by adopting a system that gave the workforce regularity of employment, earned greater profits and enjoyed better relations with its employees. Filene’s department store, by instituting a cooperative association, had done away with labor strife almost entirely and had benefited from workers’ ideas on how to improve sales. But neither the McElwain company nor Filene’s department store compared in size with any of the factories owned by U.S. Steel or International Harvester, and in most plants the owners wanted greater productivity but did not want to pay for it either in increased wages or in profit sharing. The industrial barons who owned and managed these gigantic operations had little use for idealism.
If properly implemented, Brandeis believed, scientific management could also work to increase industrial democracy. If workers had a say in how they worked, if they could see the fruits of their additional labor and ideas, they would also be more fit to carry out their responsibilities as citizens in the political world. Efficiency, he argued, had to be by consent. Even if one accepted the truths of Taylor’s arguments, they would be of no value unless implemented, and this could not be done by imposing the process on an unwilling labor force.
Try as he might, Brandeis could never get labor leaders to endorse scientific management. Samuel Gompers opposed it, as did John Mitchell of the United Mine Workers. In an interview Mitchell called Brandeis “a valued friend of labor” and “a deep thinker,” but he thought his friend mistaken in advocating scientific management. Upon reading Mitchell’s comments, Brandeis immediately wrote, urging him to rethink his position. “I am convinced that upon a full understanding of what scientific management seeks to accomplish you and other labor leaders would be the strongest supporters that the movement could have.” In response to labor charges that Taylorism amounted to little more than speeding up production, Brandeis declared that scientific management removes obstacles to production, thus allowing the worker to “produce results alike beneficial to himself and to management.” This proved to be an argument Brandeis could not win.
IN JUNE 1910, Brandeis wrote to his brother that things seemed very quiet. “I am in excellent shape,” he told Alfred. “There is not overmuch work awaiting me. If a fellow will only stay away [from the office] long enough, leisure comes easy.” He took a long weekend with Alice, Susan, and Elizabeth in Gorham, New Hampshire, and in July the family moved down to South Yarmouth for the summer. While there he received an urgent summons from Lincoln Filene. Could Brandeis come to New York to help settle the great New York garment workers’ strike that had broken out on 7 July, a continuation of the three-month “uprising” of twenty thousand mostly female workers in 1909 that had forced about two-thirds of the employers to grant some of their demands? This time the garment makers’ unions, backed by the American Federation of Labor, came fully prepared in terms of organization, finance, and public relations, and enjoyed near-universal support among the workers. In a vote taken at the beginning of July, of the 19,586 ballots counted, 18,771 called for a strike.
Unlike industries based in large factories, such as steel, or on a smaller level, shoe manufacturing, the garment business consisted of thousands of small operators. One needed only a few hundred dollars to buy some machinery and materials and rent a loft in which workers could make garments. Few of these “manufacturers” made an entire garment from scratch, but subcontracted with individuals who did buttonholes or zippers or other parts of the process. A man carrying a portable sewing machine on his shoulders was a common sight on New York’s Lower East Side, men who would work by the day for any jobber who needed them. In many shops the workers had to pay for their own needles, thread, and even electricity. Indescribably bad and unsafe working conditions plagued the industry, and when 146 mostly young, immigrant women died in the Triangle Shirtwaist Company fire on 25 March 1911, few people expressed surprise, since any of hundreds of other workplaces in the area could just as easily have gone up in flames.
This anarchic situation also operated to thwart any extensive unionization, since it would have been hard to classify many of the men and women who worked there as employees, jobbers, subcontractors, or owners. The International Ladies’ Garment Workers’ Union (ILGWU) tried to organize the industry but with only partial success; many of the laborers belonged to locals united in the Joint Board of Cloak, Suit, and Skirt Makers of New York, which in turn had a loose affiliation with the ILGWU. The 1909 strike, however, finally convinced many workers and labor leaders that in cooperation there would be strength. Moreover, many of the Jewish laborers from eastern Europe had come with a socialist sensibility that now manifested itself in a militant union movement. There had been no organization for manufacturers either; in a cutthroat business the owners tended to be suspicious of sharing any information. Besides, a person who “owned” a shop on Monday could easily be back carrying his sewing machine on his shoulders by the end of the week.
Now, in the summer of 1910, workers demanded better wages and working conditions and a closed shop; that is, one in which employers could only hire union members. They also wanted an end to the abusive treatment they received at the hands of the shop owners and foremen. The Yiddish phrase menglekhe bahandlungt—”humane treatment”—became a common chant at rallies. Although the strike involved bread-and-butter issues, the workers also wanted to be treated decently. Bertha Elkins, a Russian immigrant, said, “I want something more than work and more than money. I want freedom.” Had Louis Brandeis heard her, he would have understood exactly what she meant.
The bitterness among workers, the horrible working conditions, and the low wages swept aside any reservations about striking, and before long nearly all of the sixty thousand workers in the garment trades had walked out. Efforts by local officials to mediate failed completely. The employers formed the Cloak, Suit, and Skirt Manufacturers’ Protective Association and as long as the strikers demanded a closed shop, would not even talk to the union representatives. Retail distributors, such as the Filene brothers in Boston, faced the prospect of not having any clothes to sell their customers once their current inventory had run out. Brandeis initially refused to go to New York. “I told him that I would have nothing to do with any settlement of the strike involving the closed shop,” he later explained. “I did not believe in it, and I thought it was un-American and unfair to both sides.” On this issue Brandeis would not budge, then or later. He had no problem with workers electing a union to represent them, but he believed no qualified man should be denied a job because he had chosen not to join a union, nor should an employer have to forgo choosing a qualified worker for the absence of a union card.
Demonstrators in the 1910 garment workers’ strike
Lincoln Filene went to New York and told his brother that he hoped to win over the employers’ organization to secure Brandeis to represent it. “If I fail,” he said, “it is my intention to get Gompers to secure Brandeis. It does not seem to me to make very much difference which side has him so long as one side gets him.” Brandeis, he expected, would understand that both sides had legitimate claims and would insist on acting as counsel to the situation. If that could be arranged, the department store owner believed, Brandeis would also be able to fashion a settlement acceptable to all parties.
(Filene also had firsthand experience, since in 1907 Brandeis had acted as counsel for the Boston clothing manufacturers during a bitter strike. The union had then insisted on a closed shop, and Brandeis had worked long and hard—and ultimately in vain—to get the workers to give up that demand. When efforts at negotiation failed, he had gone to court and gotten an injunction barring picketing, which crushed the strike. Brandeis’s efforts to get labor to cooperate and his well-known support for unions made him acceptable to the workers; his toughness and willingness to get an injunction appealed to the manufacturers.)
Both sides agreed to Filene’s proposal of inviting Brandeis down to listen to their views. On Saturday, 23 July, Filene wired this “acceptance” to Brandeis, along with assurances that the closed shop would not be on the agenda. Brandeis left South Yarmouth and took the night train to New York. The next day he told Al, “I am trying to bring the parties into conference. It remains to be seen whether my journey will be as futile as that of the French king and his 40,000 men.”
Although he had made clear that he would not get involved in negotiations that included a closed-shop provision, he now had to get the General Strike Committee, representing all of the different unions and locals, to agree as well, and apparently he did so that Sunday. He wrote to Julius Henry Cohen, the distinguished New York lawyer representing the protective association, enclosing a full list of the workers’ demands. “All of the [union] officers understand fully that under this proposal the closed shop is not a subject which can be discussed at the conference.” On Monday the manufacturers formally accepted the list as a basis for discussion, and the two sides agreed to begin the conference the next day. So far Filene’s hopes that bringing Brandeis in would at the very least get the two sides to talk seemed to be panning out.
Brandeis’s involvement almost ended at this point. On Tuesday morning the New York Call carried a victory statement by the protective association that Brandeis had come from Boston to act for the strikers without compensation. He has “acted as attorney in more than a score of strikes, in the majority of instances, acting for the employers.” At his behest, the strikers had waived their demand for a closed shop, and it would not be a subject for discussion. The unions reacted furiously. They had not agreed to abandon their claim, but merely to shelve it for the present. They believed that if they could get Brandeis to help negotiate the other items, then they could come back and say that the closed shop still remained one of their demands. The spokesman for the workers, Abraham Rosenberg, accurately denied that Brandeis had been asked to act as their attorney or even offered to do so; he had been invited to see if the two sides could find some basis on which to begin negotiations. Rather than give up the closed shop, the workers would stay out for twenty weeks or more until they won.
At this point not only did the unions and employers stand as far apart as before, but the labor ranks threatened to split between the radicals demanding the union shop and the moderates who wanted to win on the bread-and-butter issues. Things became so serious that Samuel Gompers came up to New York from Washington to help patch over the differences. Meyer London, the socialist and future congressman, acting as the attorney for the unions, and Julius Cohen, on behalf of the employers, now wired Brandeis inviting him to act as chair of the meeting. Brandeis agreed but could not get away for a few days, a ploy meant to make sure that no other unexpected explosion occurred. Finally, on Thursday, 28 July, the parties sat down for the first time at a conference table, London and Cohen, each with nine members of their parties, representing the two sides.
Lower East Side sweatshop, 1908
Edith Wyatt, a writer for the popular magazine McClure’s, looked around the table and realized the great similarities among all those present—the labor people, the manufacturers, and the negotiators. Nearly all were Jewish. The union side included not only labor activists but intellectuals and socialists. On the management side sat some former union leaders, and nearly all of them had started out as workers in the sweatshops. This commonality of intellect, religion, and experience led many to be overly optimistic about the two sides’ quickly reaching an agreement.
Brandeis started with the least contentious issues, delaying the more controversial matters until last. He hoped that reaching accord early on some matters would encourage further agreement down the road. He let the representatives of each side talk as much as they wanted, but when it appeared that they had gotten to the same position, he would intervene to point that out, and move them along. Sometimes, however, no matter how long each side talked, they could not reach a compromise, and then he would propose an arrangement that gave each party something. Above all, by asking questions, by listening, by soothing tempers, he managed, at least for the first few days, to keep matters on an even keel. When Gompers returned to Washington, newspapers reported that an agreement would no doubt soon be forthcoming.
Meyer London, attorney for the union, and his office staff, ca. 1908
Then, on the third day, 30 July, J. B. Lennon, one of the union representatives, stood up and, before Brandeis could stop him, reiterated the demand for a closed shop. Brandeis immediately tried to avert disaster by pointing out that “Mr. Lennon understands … the whole conference proceeds upon the agreement that the closed shop shall not be one of the subjects discussed.”
Meyer London responded that he believed that the subject of a closed shop could be brought up under the rubric of “remedies.”
Brandeis: “It was my understanding that it could not be discussed at all.”
London: “Even under the subject of remedies?”
Brandeis: “Under any circumstances; that it was one of the tabooed subjects, so far as this conference was concerned.”
Recognizing a potential bombshell, Brandeis tried to defuse it, suggesting that perhaps, at a later time, one might discuss unions and shop rules. But he reminded the union side that when he had agreed to chair the conference, it had been on their strict assurances to him that the closed shop would not be on the table. Sensing that unless he could come up with a workable alternative the talks would collapse, he then introduced what he called a “preferential shop,” an idea he had proposed earlier when he had acted as counsel for manufacturers in a 1907 strike by garment workers in Boston.
He spoke continuously, not stopping to allow either the union or the employer representatives to interrupt him. The “preferential shop,” or, as he sometimes termed it, the “union shop,” meant that “the manufacturers should, in the employment of labor hereafter, give the preference to union men, where the union men are equal in efficiency to any nonunion applicants.” Although the manufacturers said they would reluctantly agree, the union representatives backed Lennon and walked out. Brandeis went back to his hotel room to give each side a chance to think things over, but reported to his brother that there would probably be no settlement because of the union demand for a closed shop. Although Julius Cohen tried to keep the negotiations going, and even proposed an arrangement that incorporated a form of the preferential shop, the union representatives rejected it. The Jewish Daily Forward, the leading Yiddish newspaper in New York and a strong champion of labor, denounced the preferential shop as “the scab shop with honey and a sugar-coated poison pill,” and set about raising a strike fund so the unions could reject Brandeis’s plan. Labor leaders seemed caught between the desire to find a useful compromise and the demands of the radicals for all or nothing.
Brandeis washed his hands of the whole matter, and rejoined Alice, Susan, and Elizabeth at South Yarmouth. There he fended off calls on his time, watched with interest as Theodore Roosevelt returned from Africa and stumped around the country, testing the possibilities of a run for the presidency in 1912; and took care of Alice while she suffered through a bad episode of depression, from which she recovered fairly quickly. He said nothing about the garment strike.
While he and his family enjoyed the invigorating breezes of Cape Cod, others labored intensely in New York to end the strike. Moderate union leaders rejected Lennon’s all-or-nothing approach and wanted to bring Brandeis back to represent them. The manufacturers went to court to see if they could get an injunction against the unions, although it might not have been very effective given the fragmented nature of the clothing industry. Meyer Bloomfield, a New York lawyer who had worked with Brandeis in setting up the conference, determined that until both sides showed a real willingness to negotiate, Brandeis should remain aloof. Henry Moskowitz, an influential New York social worker heavily involved in labor matters, seconded Bloomfield’s strategy. Brandeis “has made a profound impression on both sides,” Moskowitz wrote. “He will kill his standing with the workers if the judicial silence is broken.”
As the strike dragged on through the hot weeks of August and strike funds ran low, suffering among the workers’ families increased, as it did among the small manufacturers who had not received any income for several weeks. Even if the strike ended the next day, it would be a while before they could get their shops back in production and goods flowing to retailers. Edward Filene, still looking to end the strike, along with Moskowitz and Bloomfield appealed to two pillars of the American Jewish community for help—Jacob Schiff, the banker and philanthropist, and Louis Marshall, a leading New York lawyer and future head of the American Jewish Committee. When they asked Meyer London and Julius Cohen to meet, the two could hardly refuse. In the meeting, which Marshall ran, they revived Cohen’s earlier draft, which had incorporated many of Brandeis’s ideas. With both sides grown weary of the fight, Marshall finessed the language, applied pressure, and secured an agreement. What shall we call it? Cohen and London asked, since any title that seemed to favor one side over the other would immediately be suspect. “Why not call it a ‘protocol,’” Marshall suggested. “Neither group will know what that means and it will achieve the result.”
Under the settlement, garment workers secured higher wages, improved working conditions, the preferential union shop, and a joint board of sanitary control to hear complaints about safety and health conditions in the shops. Manufacturers gained labor stability since the workers promised not to strike but to take their disputes to a board of grievances and, if the matter could not be resolved there, to a three-member board of arbitration, consisting of one labor member, one manufacturer, and a neutral third party. Both sides agreed—in fact demanded—that Brandeis take the last position. He accepted and would be involved in its operation until he went on the Court in 1916. Similar agreements were signed in the Ladies’ Tailors and Dressmakers trade in September 1911, and in the Waist and Dress Makers group in January 1913, and Brandeis accepted their invitations to head those arbitration panels as well. When Chicago clothing workers went on strike, Jane Addams asked Brandeis to come out and mediate; he could not do so, because of other commitments, but recommended that she contact Lincoln Filene, Henry Moskowitz, or Meyer Bloomfield.
Demonstrators in 1915 garment industry strike
Both sides praised Brandeis for his role, although, as he modestly told Max Meyer, “I think we are all to be congratulated, and it is a satisfaction to know that there are so many who have contributed to the happy result.” Although the intervention of Schiff and Marshall had saved the day, in the end the basic components of the protocol had all been outlined by Brandeis before the negotiations broke down, and while recognizing the efforts of others, he could take satisfaction in this. Over the next several years, efforts would be made, some successful and others less so, to replicate the agreement in other places and in other industries.
As always, Brandeis wanted to publicize this new means of settling labor strife. Too busy to write an article himself, he suggested to the editor of the Outlook that Henry Moskowitz be called upon for a piece. Brandeis himself later wrote about the protocol, gave interviews to reporters, and followed up with letters to journalists such as Lincoln Steffens and Ray Stannard Baker. “This seems to be the time to commence the campaign of education,” he urged Baker. “The preferential union shop seems to be a way out of our present serious difficulty; we must pursue it unless a better way can be found. This could be made into a great human story. Would it not be possible for you to take it up?”
Judgment on the protocol is mixed. For its advocates, the compromise ushered in several years of peace and prosperity hitherto unknown in the garment industry, and the preferential union shop led many workers to join the ILGWU or one of the other unions serving the trade. Brandeis himself saw it as a prime example of democracy in action, and told a reporter that one could never bridge the wide gulf between capital and labor except on a democratic basis. The protocol represented a triumph of moderation and a willingness on both sides to meet halfway, or as he called it, in “the spirit of get-together.” Others have been less charitable. One noted labor historian described the era of the protocol as an “armed truce in which unions and employers’ associations jockeyed for advantage and ultimate power.” This is probably fair, but given the chaotic, indeed anarchic, conditions in the garment trades at the time, it may have been the best that anyone could achieve.
The protocol weakened during the economic recession of 1914–1915. The unions did not become strong enough to maintain discipline over unruly locals—a condition Brandeis had earlier recognized—and sporadic strikes led to an employers’ lockout in April 1916. This in turn triggered a large-scale strike, and the arrangement collapsed. Brandeis lamented its demise, but he had never seen it as the end stage of labor-management relations. He praised workers and manufacturers for being open-minded enough to attempt the experiment, for that is what it had been, and not all experiments lead to complete success. He believed that if he or another strong person had been at the head of the arbitration panel, the protocol might have continued, but in a way that would have defeated its purpose. Arbitration had been intended as the last measure when all else failed; if the lower levels of conflict resolution broke down, then the system itself could not survive. As he told Lincoln Filene in relation to the Filene Cooperative Association’s board of appeals, “An Arbitration Board is a very good thing to have, but it should be used as little as possible.”
NO DOUBT THE SUCCESSFUL conclusion of the garment strike marked the high point of Brandeis’s role as a labor mediator, a role he had taken on a handful of times in Boston, usually as counsel to one of his manufacturing clients. The protocol implemented many of the lessons he had been preaching over the past decade—recognition of unions, fair treatment of workers, and union responsibility—but from a personal view, the strike exposed him to a type of Jew new to Brandeis.
Eastern European Jews had, of course, migrated into the Boston area, where they worked for local garment manufacturers and in other trades, but Brandeis had no reason to meet or deal with them directly. His involvement in Boston Jewish affairs had been limited to modest contributions to Jewish charities and occasional consulting with one of the community organizations over policy questions. His Jewish clients belonged to the earlier German migration of the midcentury, people like his own family, and his business with them concerned commercial transactions.
The great mass of Jewish immigration from eastern Europe after 1880 had flooded into New York, and both workers and shop owners in the garment business had gotten off the boats together. Many of the bosses had been workers themselves, and the negotiations amazed Brandeis as workers and manufacturers shouted at each other across the table in Yiddish, which he more or less understood because of his fluency in German. Some of the workers may have complained about the serflike status that they, and especially the women, endured in the shops, but at the conference table Brandeis saw more of what he termed “industrial democracy” than he had ever witnessed before. These workers, many of them literate and articulate, felt no sense of inferiority to their employers and treated them as equals. Certainly in Boston he had never heard a labor man yell at his boss, “Ihr darft sich shemen! Passt dos far a Idn?”—”Shame on you! Is this worthy of a Jew?” Workers and shop owners quoted the Bible and the Talmud at each other, and he heard one man shout at his employer in the words of Isaiah, “It is you who have devoured the vineyard, the spoil of the poor is in your house. What do you mean by crushing My people, by grinding the face of the poor?”
Later, when he joined the Zionist movement (see chapter 17) and people asked him how he had come to that decision, he insisted that he had come back to his people through his Americanism, and cited the democracy he saw at work in the garment strike.