Battle on the Benches: the Wagner Act and the Federal Circuit Courts of Appeals, 1935-1942

Publication year1999
CitationVol. 23 No. 02


Battle on the Benches: The Wagner Act and the Federal Circuit Courts of Appeals, 1935-1942

Douglas J. Feeney-Gallagher(fn*)

I. History of the National Labor Relations Act and the National Labor Relations Board's Relationship with the Federal Circuit Courts

The New Deal years witnessed an explosive growth in the size and powers of the federal government as President Roosevelt proposed a series of measures to lift the nation out of the grasp of the Great Depression.(fn1) Many of these measures involved the creation of new administrative agencies, each focused on a particular problem or facet of the national economy. To many it seemed that overnight an alphabet soup of "new instruments of public power" had emerged and brought under federal regulation whole areas of the national life once considered private and removed from the public sphere.(fn2) Never before, except during times of war, had the federal government held or exercised such broad and extensive powers.(fn3) By the middle of 1935, federal administrative agencies were busily regulating nearly all facets of the economy. The National Recovery Administration drew up production codes for private corporations,(fn4) the Civilian Conservation Corps provided direct public relief and employment, the Tennessee Valley Authority involved the federal government in regional economic and social planning, and the Securities and Exchange Commission brought under federal supervision the securities market. Nothing, it appeared to the New Deal's critics, fell outside the scope of federal authority as the new administration attempted to resuscitate the moribund national economy.

The most significant federal agency born under the New Deal came to life in July 1935 when President Roosevelt signed the National Labor Relations Act (NLRA, or the Act), also called the Wagner Act.(fn5) Never before in peacetime had the federal government decided to so heavily regulate the private relationship between an employer and his or her workers.(fn6) On the surface, the Wagner Act simply restated the labor provisions contained in the earlier National Industrial Recovery Act, which also protected the rights of workers to organize but had lacked the power to enforce those provisions.(fn7) The NLRA made illegal a whole host of employer actions designed to block the organizational and unionizing efforts of their workers.(fn8) The legislation also created a powerful agency with administrative and adjudicative powers to enforce the Act's protections.(fn9) Congress delegated to the new National Labor Relations Board (NLRB, or the Board), sweeping powers over the employment relationship. The Board held the authority to charge employers with committing unfair labor practices, conduct administrative trials against the employer, and impose sanctions forbidding the employer from interfering with the right of his or her workers to organize. The existence of the Board challenged traditional managerial prerogatives in the workplace and threatened to fundamentally transform the power relations between workers and their employers.

Looking back over the first ten years of the NLRA, Charles Fahy, the Board's General Counsel from 1935 to 1941, reflected upon the Board's close relationship with the lower federal courts.(fn10) He reminded his readers that "like most quasi-judicial agencies . . . and perhaps to a greater extent than most, there are no powers which [the Board] can exert unaided."(fn11) Therefore, he continued, a Board ruling takes on the force of law only "until it becomes the order of a Circuit Court of Appeals."(fn12) Orders of the Board were not self-enforcing, and the Board could not compel or force employers to obey its directives.(fn13) Thus, the Act itself gave the lower federal courts "a vital position in the statutory" structure of the new labor legislation as the constitutional body charged with enforcing decisions and orders of the Board.(fn14) Fahy recognized that the judges sitting on the federal court benches, and not the Board, would "either make the Act work or destroy it" through their powers of judicial review over Board decisions.(fn15) This was true despite the legislative intent of the NLRA, aggressive enforcement of the Act's protections by the Board, and even public support for the new labor law.

Though the Wagner Act gave the NLRB the power to protect workers' rights to organize, the Board nonetheless did not operate completely independent of the other branches of government. The Board was charged with enforcing the Act's provisions, as Charles Fahy pointed out, but the federal circuit courts of appeals made the Board's orders real.(fn16) The Act allowed employers to appeal NLRB rulings directly to the nation's federal circuit courts of appeals.(fn17) The circuit courts also heard Board requests for enforcement of its decisions against recalcitrant employers.(fn18) Through their powers of review, circuit court judges were the first group of federal judges to offer opinions on the Act's intent, rule upon its constitutionality, and delineate the proper jurisdictional boundaries of the NLRB as an agency with adjudicative and administrative powers. Thus, circuit court judges played an important role in the construction of a new body of national labor law around the legislative framework provided by the Wagner Act.

The question of how to enforce the Act, as this essay will show, varied among the various judges sitting on the federal court benches. Often the choice in the federal circuit courts was not between destroying the Act or deferring to the Board's aggressive enforcement of its provisions, but rather, the choice involved determining the proper limits of the Board's authority and drawing clear lines around that authority to safeguard traditional judicial powers and functions. Thus, the battle among circuit court judges who determined whether to enforce or vacate Board decisions revealed a deeper struggle concerning the role of administrative agencies in the American form of governance. For the Board, this struggle on the circuit court benches meant that the agency faced a divided judicial landscape. These divisions subsequently resulted in the uneven enforcement of the Act's new protections. Moreover, the battle on the benches forced the Board to continually meet the challenge of differing standards of conduct and evidence as well as limits on its administrative and judicial authority.

Few historians have examined the important role that circuit court judges played in the labor relations system set up with the National Labor Relations Act of 1935. Instead, most have focused on the Supreme Court's interpretation of the new labor legislation.(fn19) By focusing on the Supreme Court, however, these historians overlook the intense battles that took place over the NLRA within the nation's eleven federal circuit courts of appeals. Circuit court judges handed down the first rulings concerning the Wagner Act, and it was from this group of judges that both employers and the NLRB sought relief or orders of enforcement.(fn20) Though bound to accept rulings of the Supreme Court as precedent, circuit court judges, nonetheless, exerted an enormous amount of influence over how effectively the Board enforced the Act in different regions of the nation.

An examination of circuit court rulings concerning the NLRA from 1936 through January 1942 reveals the struggle waged by some circuit court judges to preserve the integrity of the judicial branch against intrusions from the NLRB and the rise of a reinvigorated con-ceptualist legal critique of the New Deal administrative state.(fn21) These judges resisted the invasion of federal power into the employment relationship and interpreted as narrowly as possible the powers and scope of the NLRB. Additionally, most of these judges did not challenge the NLRB with purely nineteenth-century legal conceptualist or formalist reasoning. By the 1930s, they too had adopted many realist assumptions concerning law and spoke in a realist rhetoric. However, instead of championing the rise of administrative law and agencies, these judges reasserted legal principles firmly rooted in pre-Depression America.(fn22) In essence a strain of legal formalism, though disguised, "persisted under the realist banner" within the federal circuit courts in their decisions concerning the new labor board.(fn23)

The conflicting judicial attitudes expressed in the circuit courts did not solely concern the legitimacy of the new labor legislation. The battles over the Wagner Act also reflected deeper differences both over the role of the judiciary in the New Deal political order and the emergence of powerful administrative agencies seemingly operating outside of the Constitution. These legal and judicial differences exhibited in the circuit courts originated partly in the two competing schools of legal thought circulating in the early twentieth century.

II. Two Competing Schools of Thought: Legal


The battles among the judges sitting on the circuit court benches over the new labor board illustrate differing conceptions concerning the role of the administrative agency in the American form of governance. The legal battles over the NLRB also reflect the two competing schools of legal thought circulating in the late nineteenth and early twentieth...

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