Washington, D.C., February 24, 1915.
To the Organizers of the American Federation of Labor:
Dear Sirs and Brothers:
There is an insidious and persistent attempt by the enemies of organized labor to minimize the importance of the labor sections of the Clayton Antitrust Act and to create the impression that the legislation has not secured for workers better protection in exercising their rights. Because the ultimate purpose of this attempt is to mislead the workers and to discourage efforts along the only lines from which progress can reasonably be expected and because many workers have not at hand sources of information by which they could inform themselves that the attacks upon the Clayton Antitrust Act are based upon untruths, I am putting in your hands this simple, concise statement. In your work among the rank and file of the workers you will find many opportunities to press home these truths and to counteract this attempt to mislead public opinion.
I urge upon you to let no misrepresentations go on unchallenged and unrefuted in regard to the great victory won by organized labor in the legislation embodied in the labor sections of the Clayton Act, which became law October 15, 1914.
The two sections of the act that are of greatest importance to labor are 6 and 20. Section 6 is as follows:
"Sec. 6. That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws."
The first sentence of this paragraph "that the labor of a human being is not a commodity or article of commerce" enacts into law the fundamental principle which is the basis of industrial liberty. That principle distinguishes between the labor power of a human being who produces an article and the thing which he produces.
In brief, the thing upon which that principle is justified is as follows: Men and women are not of the same nature as the things they make. Labor power is not a product--it is ability to produce. The products of labor may be bought and sold without affecting the freedom of the one who produced or who owns them--but the labor power of an individual can not be separated from his living body. Regulation of and conditions affecting relations under which labor power is used are a part of the lives and the bodies of men and women. Laws which apply the same regulation to workers, and to the products made by workers, are based upon the principle that there is no difference between men and things. That theory denies workers the consideration and the rights given to human beings. It denies the freedom and protection of free men and women.
All manual work was formerly done by slaves. Slaves were property. The law treated them as things. Legal theory was built upon that principle. The principle by which workers were branded with slavery runs through ancient legal precedents, procedure and judicial decisions.
The common law of England was tainted by this idea so degrading to human workers.
The law of the United States was built up on this legal and judicial heritage from Europe and chiefly from England. Although slavery as an institution never applied to white workers in this country, yet in the courts they have had to suffer from and combat this ancient injustice placed upon former workers. This injustice came by injunctions issued in industrial disputes and through perversion of the Sherman Antitrust law, its provisions were interpreted so as to apply to human beings. Both the injunction and the trust law are intended to apply to property, extension of their application to human labor power and normal human activities for human betterment reduces the workers to the same legal category as things.
This is a brief explanation why this statement "the labor of a human being is not a commodity or article of commerce" is epochal. It marks the end of the old period where workers were under the shadow of slavery and the beginning of a new period when workers nor their labor power are to be regarded as things--the property of another.
As all workers know that under present conditions they have benefits from industrial freedom only when they organize, as individuals they are unable to secure better conditions from employers or even to make agreements--otherwise they can only accept or decline whatever terms the employer chooses to offer. Immediate necessity may compel them to accept terms that are unfair. Judges have treated labor unions as organizations in illegal restraint of trade and have held that their normal activities were conspiracies.
One of the reasons assigned by the Supreme Court of the United States for holding that the Sherman Antitrust Act applied in the case of the Danbury Hatters was that the hatters' organization had succeeded in establishing the union shop in seventy out of eighty-two hat manufacturing establishments.
The second sentence of Section 6 secured to labor organizations recognition as legal organizations, the right to exist and to carry out the legitimate purposes of organization. It exempts labor organizations and their members from the provision of trust legislation, when they are performing the duties for which the unions were instituted.
The activities which are the legitimate purposes of organized labor are of vital importance. Courts through abuse of the writ of injunction and by judicial interpretation have denied workers the right to do that which is necessary in order to promote their welfare and secure their protection against employers' greed and injustice. Section 20 specifically enumerates certain rights formerly denied by courts which are now lawful. The text of Section 20 is:
"Sec. 20. That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employes, or between employers and employes, or between employes, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.
"And no such restraining order or injunction shall prohibit any person or persons whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising or persuading others by peaceful means so to do, or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States."
You will note that the second paragraph declares that workers have a right to quit work "singly or in concert"--that is, to strike. They have a right to ask others to join the strike movement. They have a right to "picket." They have a right to "withhold their patronage," or, in every-day English, to "boycott," and they have a right to recommend, advise or persuade others "to boycott." They have a right to pay strike benefits. They have the right of peaceful assemblage.
Then note particularly this significant clause:
"Nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States."
These rights enumerated here, now secured by the Clayton Act, have again and again been denied workers through the abuse of the injunctive writ. These injunctions were issued by the courts extending their jurisdiction and power, and then using this extended jurisdiction and power as precedents for further encroachment upon the workers' rights and liberties.
Now as to the decision in the Hatters' case, which occasioned the campaign of misrepresentation carried on through the daily press and organs of hostile employers. The Hatters' case was begun in 1903. That case and the decision of the Supreme Court in 1908 holding that the Sherman Antitrust law applied to organizations of labor, were what convinced the A.F. of L. that legislation to prevent such litigation was necessary to protect the very existence of organized labor. It was the effort to secure such legislation that finally succeeded in the enactment of the labor provisions of the Clayton Act, which became law October 15, 1914.
Law, of course, is not retroactive. A law enacted October 15, 1914, could have no application to any case pending in the courts prior to its enactment. The Clayton Act could not under any circumstances be held to apply to the Hatters' case. The Clayton law went into effect at once and is operative now and for the future.
Statements therefore intended to create the impression that the Hatters' decision demonstrates the inadequacy of the labor provision of the Clayton Act are mischievous and false, and have their origin in ignorance or deliberate intent to deceive the workers.
The courts have not yet interpreted the Clayton Act, but we have the avowed declarations of those who enacted the law as to its application.
Section 6 will prevent the institution of suits similar to that against the Danbury hatters for normal trade union activity since October 15, 1914.
Section 20 declares lawful the acts for which the Danbury Hatters were declared guilty and sentenced to pay threefold damages.
If any doubt the correctness of our contention, let them read the endorsement of former Attorney-General George W. Wickersham, who opposed the enactment of Labor's contentions into law and who surely can in no way be accused of an attitude of mind favorable to the workers. In regard to the Clayton Act, he stated:
"Had the Clayton law been then in force, it seems clear that the defendants' (Hatters) acts would not have been illegal.
"But by force of the Clayton law, whether any of the acts enumerated in the second paragraph of Section 20 be done singly, or in concert, henceforth they are equally legal in the eyes of the federal law. It is therefore apparent that the labor organizations have secured a statutory reversal of the principles of the decision in the Danbury Hatters' case and the legalization of the boycott as a lawful instrument to ensure the dominance of organized labor, thus substituting the Gompers conception of liberty for that of the Declaration of Independence, the Constitution of the United States and Abraham Lincoln."
In all the history of the working people of this or any other country, no such declaration has been enacted into law as was secured by the A.F. of L. in the enactment of the labor provisions of the Clayton Antitrust Act, which went into effect October 15, 1914. That law declares that the labor of a human being is not a commodity or article of commerce. It declares lawful the exercise of the normal activities of the labor movement of the United States. It gives freedom for the toilers of our country to work out their every-day problems of life, and to earnestly and persistently, as well as rationally, continue the struggle for a better and truer life for all.
Fraternally yours, Saml Gompers.
President, American Federation of Labor.
Executive Council Records, Vote Books, reel 13, frames 627-29, AFL Records.