Jim Pope

Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–1958

The following abbreviated citations are used in this essay: ABJ—Akron Beacon Journal AFL EC Minutes—American Federation of Labor, Minutes of the Meeting of the Executive Council 1930–1948 (Microform edition) (Frederick, Maryland: University Publications of America, 1996) CR—United States Congress, Congressional Record DLN—Detroit Labor News (official organ, Wayne County Federation of Labor) DN—Detroit News FMCS Records—Records of the Federal Mediation and Conciliation Service, Record Group 280, National Archives II, College Park, Maryland NYT—New York Times PP—Punch Press (newsletter of sit-down strikers occupying General Motors plants, Flint Michigan, 1937) SCLN—Summit County Labor News (official organ, Summit County Federation of Labor, Akron Ohio) UNS—Union News Service (official organ, Congress of Industrial Organizations) Wayne State Archives—Wayne State University Archives of Labor and Urban Affairs, Detroit, Michigan. Between 1936 and 1939, American workers staged some 583 sit-down strikes of at least one day's duration. In the latter year, the United States Supreme Court issued its opinion in NLRB v. Fansteel Metallurgical Corporation, resolving the official legal status of the tactic. Fansteel made it clear not only that a state could punish sit-downers for violating trespass laws, but also that an employer could lawfully discharge them—even if that employer had itself provoked the sit-down by committing unfair labor practices in violation of the National Labor Relations Act.¹	1
Fansteel has sparked sharp controversy among legal scholars. Karl Klare argued that the decision was a milestone in a series of Supreme Court rulings that truncated the democratic potential of the Wagner Act. Far from the lawless form of mob action depicted in court decisions, Klare portrayed the sit-down as a form of "legal practice" used by workers to obtain collective bargaining despite "the widespread and often violent refusal by employers to obey" the Wagner Act. Moreover, he argued, the sit-down held forth far more radical possibilities for workplace democracy than the bureaucratized system of collective bargaining that eventually prevailed. According to Klare, the tactic provided mass production workers with the power necessary to break out of their routine subordination, the experience necessary to think of themselves not as passive consumers but as active producers capable of shaping their work lives, and the level of involvement required to keep their unions democratic and solidaristic. Thus, when the Supreme Court disapproved the sit-downs in Fansteel, it damaged the prospects for a participatory, democratic industrial order and "bolstered the forces of union bureaucracy in their efforts to quell the spontaneity of the rank and file."²	2
Klare's claims drew harsh criticism. If the sit-downers were engaged in legal practice, charged Louis Schwartz, then so is a "gruesome rapist" whose crime provokes a legislative response. Matthew Finkin forcefully reaffirmed the received wisdom that the sit-down strike was a plainly illegal tactic directed at the decidedly nonradical goal of achieving union recognition. With collective bargaining established, Finkin argued, unions and workers abandoned the tactic on their own, making the Supreme Court's Fansteel decision all but superfluous. Unlike Klare's account, Finkin's had a happy ending; workers ended up with bureaucratized unions that traded shop floor power for higher wages because that is what they wanted. Neither Klare nor his critics undertook the kind of historical research that would be necessary to resolve the debate. As Klare pointed out in his reply to Finkin, he had not set out to write a history of the sit-down strikes.³	3
The present article seeks to fill that gap, focusing on the claim that the sit-downers were engaged in legal practice. It finds strong evidence that many were, and in five distinct forms of practice. First, the sit-down made it possible for mass production workers to legislate and enforce unilateral rules directly regulating relations of production. These rules concerned such subjects as the pace of production, seniority rights, the obligations of solidarity, the organization of steward systems, and the establishment of dispute resolution procedures. This rulemaking raises the possibility that, had the sit-down not been suppressed or abandoned, unilateral worker regulation might have provided an alternative—or, more likely, a supplement—to the joint employer-union lawmaking of the post–World War II collective bargaining regime.⁴	4
Second, sit-downers legislated, adjudicated, and enforced rules governing life in the facilities that they had seized. Because the strikers never attempted to run occupied enterprises for their own benefit, this activity never reached the point of presenting an alternative to the collective bargaining regime. However, the sit-downers' practices of self-government do say much about their legal consciousness. Once a company's management had been evicted, the strikers were left free to enact and administer rules—or not. By the choices they made in this void of authority, the strikers revealed much about their vision of a proper legal order.	5
Third, unlike Schwartz's "gruesome rapist," sit-downers claimed to be exercising a legal right. They formulated, defended, and delimited a legal right of workers to stage a sit-down strike at their place of work. The contours of this right constrained not only corporate and governmental authorities, but also the sit-downers themselves. For the most part, workers limited themselves to activities that fell within the scope of their justifications for the right.	6
Fourth, many sit-downers claimed to be engaging in self-enforcement of official law—not only the NLRA itself, but also the United States Constitution. Many employers refused to comply with the Act on the grounds that it exceeded the reach of Congress's commerce power and infringed their economic due process rights of contract and property. Workers and unions held to the contrary and enforced their holdings with sit-down strikes. Parts of this story have been told before, and I have previously argued that the sit-down strikers "plainly and simply" forced the Supreme Court to uphold the NLRA in April 1937.⁵ The present article recounts how workers and unions accomplished this. It suggests that they engaged the various levels of government in a series of escalating tests of commitment—a dynamic that, as posited by Robert Cover, is a distinctive feature of lawmaking from below.⁶	7
Finally, workers used sit-downs to enforce collective bargaining agreements. In this role, the sit-down—depending upon one's viewpoint—either substituted for the contractually agreed-upon grievance procedure or speeded its operation by forcing a quick resolution at an early stage of the procedure. Emboldened by the effectiveness of the sit-down, many workers refused to submit to the employer's interpretation of the contract pending a formal resolution. While national union officials joined employers in condemning this practice as inefficient and uncompetitive, it certainly enhanced worker participation and union democracy. Indeed, the opposition of union officials might well have had less to do with efficiency or competitiveness than with enhancing their own authority and tenure in office.	8
A preliminary objection must be addressed. According to one school of thought, there is no such thing as unofficial "law."⁷ In this view, worker-made rules do not constitute law, and their rulemaking and enforcement could not amount to legal practice. The present article claims, however, that the sit-downers' rulemaking, adjudication, and enforcement amounted to legal practice in the sense of conscious, collectively organized rule creation and enforcement. This claim comports with the definition of a legal order as "any normative order which includes secondary rules: that is, exhibits division of labor in any of its aspects, is to any extent institutionalized." Thus, a society can be said to contain multiple legal orders whenever it includes more than one distinct rule of recognition, that is, where two or more bodies of law are "not reducible the one to the other."⁸ During the first half of the twentieth century, the rules generated by workers and unions existed in tension with the official law of the state, and the worker-made and state-made laws of labor were not in any sense reducible the one to the other.	9
This article is organized as a narrative, recounting the rise and fall of sit-down strikes and lawmaking by mass production workers. Part I relates the emergence of the sit-down and unilateral worker lawmaking in Akron and Detroit during 1936 and 1937. In Part II, the labor movement divides among three positions on the sit-down issue, one of which claims a fundamental right of workers to occupy their places of work. Part III recounts the development and limitation of the claimed right on the ground. In Part IV, workers and unions hold the Wagner Act constitutional and enforce it with sit-down strikes, challenging the commitment of the various levels of government to the defense of corporate property rights. Part V relates the fate of sit-downs and worker lawmaking before the National Labor Relations Board, in the Supreme Court, and on the shop floor. Part VI speculates on the significance of the outcome.	10

I. An Explosion of Worker Lawmaking: Akron and Detroit, 1935–1937
On January 27, 1936, the Firestone Tire & Rubber Company suspended Clayton Dicks for one week without pay. Although the Firestone management recognized no union, members of the United Rubber Workers of America had already established an organization in the Akron plant. Dicks, a union committeeman in the tire building department, had been accused of punching and knocking out a nonunion man. Union tire builders complained that the company had appointed itself "prosecutor, judge, and jury" and demanded "a fair trial before an equal number of union and company representatives."⁹ The company refused and the tire builders responded by stopping work in a body. Ruth McKenny penned this account of what happened next: Instantly, the noise stopped. The whole room lay in perfect silence. The tirebuilders stood in long lines, touching each other, perfectly motionless, deafened by the silence.... Out of the terrifying quiet came the wondering voice of a big tirebuilder near the windows: "Jesus Christ, it's like the end of the world." He broke the spell, the magic moment of stillness. For now his awed words said the same thing to every man, "We done it! We stopped the belt! By God, we done it!" And men began to cheer hysterically, to shout and howl in the fresh silence.... "John Brown's body," somebody chanted above the cries. The others took it up. "But his soul," they sang, and some of them were nearly weeping, racked with sudden and deep emotion, "but his soul goes marchin' on."¹⁰	11
The tire builders remained at their machines and announced that they would not resume work until Dicks was reinstated. Union leaders labeled the protest a "sit-down" as opposed to an ordinary strike. Although the term had been heard before, the Dicks sit-down marked its entry into the standard vocabulary of industrial conflict. Fifty-five hours after production ceased, the protest ended with Dicks reinstated with back pay at half his normal rate for the period of the suspension and the sit-downers paid at the same rate for the period of the sit-down.¹¹ A local union leader reported to the CIO that this was "one of the greatest victories ever won by labor" and that it had "done more to build up the Trade Union Movement here than anything we could have even thought of doing."¹² Within days, the Dicks sit-down had sparked similar actions at Akron's other tire-making giants, Goodyear and B. F. Goodrich. Thanks to the sit-down tactic, the legislation and enforcement of work rules—once the exclusive preserve of employers and skilled craft workers—suddenly became a realistic possibility for semi- and unskilled workers in mass production industry.	12

On the Shop Floor: From Wage Slaves to "Men"
Writing in 1923, John R. Commons—America's leading labor scholar—described what he called a "common law of labor springing from the customs of wage earners." This law consisted "in those practices by which laborers endeavor to achieve their ideals through protection against the economic power of employers." To Commons, the workers' common law consisted not of mindless or instinctive adaptations, but of norms consciously "formulated in assemblies or groups while dealing with violations and deciding disputes as they arise." The central norm was that of solidarity among workers, which—unfortunately for them—was "exactly opposite to the ideals and customs of business which the courts have been defining and classifying for some 300 years."¹³	13
Despite the hostility of courts, workers and unions legislated, adjudicated, and enforced their own labor laws during Commons's day. For example, an assembly of craft workers might enact a union "law" establishing a minimum wage for the craft. This law would operate directly on workers, with no involvement by the employer. Workers would simply announce to employers that they were bound by union law to refuse any jobs that paid less than the craft's minimum wage. The employer would either pay the minimum or lose its union workers until the law was repealed or otherwise rendered ineffective. Such unilateral union laws covered a wide variety of employment conditions and practices including, in some cases, production technology and product design.¹⁴ They often co-existed with joint employer-union collective bargaining agreements, addressing matters not covered under those agreements. Even in non-union shops, groups of workers might combine to regulate on such issues as the pace of production or the obligations of solidarity.¹⁵	14
Unilateral worker lawmaking thrived mainly in the skilled trades, where the scarcity of qualified workers made it difficult for employers to circumvent union rules by hiring non-union workers. But semi- and unskilled workers also aspired to regulate their work lives. "Whenever they came into regular contact on the job, wherever they recognized a common identity," recounts labor historian David Brody, "factory workers formed bonds, legislated group work standards, and, as best they could, enforced these informal rules on fellow workers and on supervisors."¹⁶ During the 1920s and early 1930s, what Commons called the "common law of labor" had flourished—albeit in crude and fragile forms—in the tire-building rooms of the big-three manufacturers, Goodyear, Firestone, and B. F. Goodrich. Lacking a union, the tire builders forged their own shop-floor culture of resistance. Paid by the tire, they could—at least theoretically—earn more money by producing more tires. In the experience of the workers, however, their employers would lower the piece rate if too many builders were exceeding the expected pace of production. In response, the builders joined together to legislate their own tire quotas, which they enforced through social pressure, slowdowns, and strikes.¹⁷	15
Although Akron's tire builders developed tough patterns of resistance during this period, their struggles were brief, small in scale, and conducted as covertly as possible to avoid employer retaliation. As a result, their common law order was limited in scope and crude in definition. They made no attempt to codify their rules or to create formal, rulemaking organizations. This began to change in 1933, when Franklin Roosevelt's election, the passage of the National Industrial Recovery Act, and a mild economic recovery stimulated a wave of union organization. By the end of the summer, AFL organizer Coleman Claherty claimed to have enrolled more than 40,000 Akron rubber workers, 19,000 of them at Akron's big three tire manufacturers.¹⁸	16
With union organization came the opportunity for workers to specify their laws in written codes, extend them to cover new situations, and enforce them with formal sanctions. Candidates for union membership were required to "take the obligation" before joining. This entailed pledging to abide by the constitution, laws, and regulations of the union. The principle of solidarity took explicit, legal form in union constitutions and by-laws. The first constitution of the United Rubber Workers (URW), in effect at the time of the events recounted here, barred members from working for "any individual or Company declared in difficulty" with the union. Violators could be fined, suspended, or expelled.¹⁹	17
At the same time that union organization offered new opportunities for self-government, it also posed new threats. Many union officials preferred the orderly, hierarchical structure of business organizations to the passion and tumult of rank-and-file democracy. John L. Lewis, for example, viewed his United Mine Workers union as "a business institution" that could best win higher standards for miners through obedience to his commands.²⁰ Emulating Lewis, AFL President Green ruled that the members of the newly formed URW were not yet ready to choose their own officers. But the rubber workers insisted on elections despite Green's threat to withhold financial support from their fledgling union. They chose national leaders who, until recently, had labored in the rubber factories.²¹ It was not long before this new leadership was put to the test.	18
In February 1936, the Goodyear Tire & Rubber Company discharged 137 tire builders for staging a sit-down. Within days, the company's enormous Akron plant was shut down, with rotating shifts of pickets manning sixty-three posts around its eleven-mile perimeter. Goodyear obtained an injunction barring mass picketing but a crowd of 5,000 workers faced down the 150 officers who had been assigned to open the plant. When the strike ended on March 21, not only had the 137 sit-downers been reinstated, but the URW had won an agreement limiting Goodyear's discretion to increase hours and granting other concessions without conceding any restrictions on the workers' right to strike.²² Far from ending the sit-downs, this modest step toward collective bargaining only escalated the struggle for power on the shop floor.	19
No sooner had operations resumed, than the returning strikers began to enact and enforce their own laws of the shop. The old tradition of informal production quotas emerged into the open in the form of public union legislation. Tire builders limited themselves to fifty-six tires per shift; heater men to eighteen heats. Unionists in the more militant departments imposed a ban on working with nonstrikers.²³ This rulemaking emulated that of the skilled craft workers who had built the first stable unions in the late nineteenth century, but with a narrower scope and a different mode of enforcement. Unlike their skilled predecessors, mass production workers did not attempt to regulate the methods of production themselves; instead, they sought to control the pay and working conditions associated with new technology. And where the skilled workers had drawn on their monopoly of craft knowledge for the power necessary to support effective lawmaking, semi- and unskilled workers drew primarily on their capacity to stage sit-down strikes.	20
On May 29, 1936, five weeks after the strike settlement, Goodyear issued a detailed "Sit-Down Report" complaining that there had already been nineteen sit-downs in its Akron plants. Of these, six or seven were efforts to enforce production quotas, while one sought to control the pace of work on newly installed machinery. Four aimed at excluding nonstrikers from departments or choice assignments. Three were efforts to share the available work by reducing hours or eliminating overtime work. The remainder sought objectives ranging from pay for work lost during a previous sit-down to the reinstatement of a lead worker. The sit-down movement continued through 1936 as Akron workers staged at least fifty-two between the Goodyear settlement and the end of the year. Reflecting the high level of tension in the plants, these sit-downs were sometimes accompanied by threats of violence and physical assaults on non-union workers.²⁴	21
Perhaps the most outstanding feature of these early sit-downs was their effectiveness. Of the seventeen whose outcomes were reported by Goodyear, seven produced complete victory for the workers on the spot, three resulted in compromises, and five ended when management promised to meet promptly with the union committeemen; only two failed to achieve any result. "In most instances," the company summed up, "resumption of production has been accomplished only by substantial concessions on the part of management in the interest of peace and continuing production during the present peak period."²⁵	22
The experience of success gave many workers a new self-respect grounded in their identity as producers. "Now we don't feel like taking the sass of any snot-nose college-boy foreman," commented one, while another declared: "Now we know our labor is more important than the money of stockholders, than the gambling in Wall Street, than the doings of the managers and foremen." The sociologist Melvin Vincent observed that the sit-down "makes for greater sociability among the workers," thus creating "a new solidarity among them." After a successful sit-down, the United Auto Worker reported "a totally new feeling" among the workers—a feeling that transformed them from "wage slaves" into "men."²⁶ As we have seen, the Dicks sit-downers expressed this sentiment on the spot, chanting lines from "John Brown's Body."	23
Given the sit-down's impressive rate of success, it is not surprising that the tactic soon spread to other industries and localities—most importantly the automobile manufacturing plants in and around Detroit, Michigan.	24

In the Occupied Factories: The Most Astonishing Feeling of Order
In early 1936, the automobile industry remained a stronghold of anti-unionism. Even without recognized unions, however, automobile workers were already taking advantage of every opportunity to legislate and enforce rules governing their work lives, especially the pace of production. "We did not have any recognition from the company," observed one activist. "We had our own recognition." Occasionally, auto workers staged brief sit-downs similar to the Akron rubber workers' early actions.²⁷	25
In December 1936, this sporadic activity suddenly gelled into a mass movement. Encouraged by President Roosevelt's smashing re-election victory, auto workers for the first time began to occupy entire facilities and to hold them until a settlement was reached. Along with plant-wide scope came plant-wide demands including union recognition. Week-long factory occupations at three major auto parts manufacturers fell short of winning union recognition, but triggered dramatic gains in union membership and influence. Emboldened by these successes, militant workers in Flint, Michigan proceeded to seize and hold two facilities of the General Motors Corporation, bringing on what has been called "the 'most critical labor conflict' of the 1930's and perhaps in all of American history." In January and February, workers in a growing list of industries followed their lead.²⁸	26
Having evicted their bosses, the strikers found themselves in a void of established authority. Without the benefit of hindsight, outsiders might have predicted a wide range of possible responses. Accustomed to occupying the bottom rung of a steep hierarchy, the workers might have felt disoriented and in need of direction. They could have resumed the role of subordinates either by calling upon the outside union hierarchy for guidance or by establishing their own authoritative hierarchy in the plant. Or they might have exulted in the individual freedom and refrained from establishing any order at all.	27
Instead, the strikers unhesitatingly took up the project of self-government. No sooner did they secure the premises than they began to form committees, make rules, and assign tasks. Their goal was to win the strike; they made no attempt to operate the plants. Reflecting the context of struggle, both the strikers and their audience often described the sit-down organization as "military," referring to the posting of guards, the organization of patrols, and—at Chrysler—the playing of "Reveille" every morning. But the strikers' governments bore no resemblance to a military hierarchy. In every shop for which information is available, workers chose the most direct form of democracy that appeared feasible under the circumstances. In Fisher No. 1, for example, a strike committee of about fourteen to seventeen members was elected on the basis of departmental representation, with a five-member executive board (or council) of the strike committee making moment-to-moment decisions. Each day, the strikers met as a body to review the decisions of these committees. This model of an elected strike committee overseen by frequent general meetings became the standard pattern for sit-down governance. At the Dodge Main plant, where a much larger number of strikers were spread out in a huge facility, the main governing body was the Chief Steward's Committee. Even more remarkable than the democracy, from a military point of view, almost every task was carried out by committee. Committees organized everything from defense preparations to recreational activities. They provided food, reading material, education, mail services, maintenance, and sanitation.²⁹	28
Instead of relying on ad hoc policymaking, the strikers enacted rules governing virtually every aspect of life in the occupied factories. Rules directed the performance of assigned duties, prohibited sabotage, specified mandatory sanitary practices (no littering; assist in daily clean-up; return dirty dishes to the kitchen; no foreign objects in toilets), provided for safety (no smoking outside cafeteria; no liquor or guns in the plant), set standards of decorum (no yelling; no talking in sleeping areas), and established security procedures (credentials required for all sit-downers; visitors to be searched).³⁰	29
Factory occupations ran up against social norms prohibiting the co-habitation of men and women not married to each other. Because of the need for support from the workers' spouses at home, this stimulated strong rulemaking. Where men made up a large majority of the strikers, they usually enacted total bans on women in the plant. Elsewhere, women and men occupied plants together.³¹ On some occasions women strikers nullified men-only rules by refusing to leave.³² Where women and men resided together in the plant, rules provided for separate sleeping quarters, sometimes with a matron in charge. Although a number of factory occupations were conducted primarily by women, there is no record of women finding it necessary to exclude men. "This is a woman's sit-down," explained a strike leader at one cigar factory, where five hundred women and thirty men were in residence. "The men are just around that's all."³³	30
Factory occupations crossed race as well as gender lines. Although many black auto workers were wary of the UAW, some did join in the sit-downs. Unlike male-female issues, however, black-white problems did not stimulate any recorded lawmaking in the occupied shops. The UAW Constitution called for all auto workers to "unite in one organization regardless of religion, race, creed, color, political affiliation or nationality." On the whole, this principle appears to have been followed. The written record does not reveal any overt racial disputes among the sit-downers, and August Meier and Elliott Rudwick, who interviewed a number of black participants, attributed the lack of black support not to the behavior of white sit-downers, but to generalized, long-term concerns about union racism.³⁴	31
In at least two plants, legislative proposals were challenged on the ground that they violated the United States Constitution. Reading newspapers was an important activity for sit-downers, who received a wide variety of dailies on a regular basis. During both the General Motors and Chrysler sit-downs, strikers introduced proposals to ban the Communist Daily Worker from the plants. At Fisher Body No. 1, the assembled strikers voted down the proposal after strike chairman (and secret Communist Party member) Bud Simons argued that to censor the readings would violate the workers' constitutional rights. At Dodge Main, where the Communist presence was weaker, the Strike Executive Committee passed an ambiguous motion after a vigorous debate over free speech.³⁵	32
No sooner would sit-down strikers establish order in an occupied factory than it would begin to unravel. On New Year's Eve, the second night of the Flint Fisher Body No. 1 occupation, workers stretched and violated their newly enacted rules. "According to the flexible rules in vogue in the beginning as to obtaining leave," recalled Flint Auto Worker editor Henry Kraus, "almost everybody had some 'good reason' to go out that night, though actually bent on celebrating." Meanwhile, some of the remaining occupiers imbibed liquor and partied with two prostitutes smuggled into the plant. A timely assault by company guards would have ousted the strikers with little difficulty. At the Flint Cadillac plant, discipline had eroded by the third day of the strike. "Some workers are doing all the picket duty, others none at all," reported one striker, "and Big Slim has lost his voice pleading, cajoling and threatening." Similar problems arose at Fisher Number 2.³⁶	33
To deal with these problems, the strikers added a judicial branch to their shop government. "Kangaroo courts" adjudicated rule infractions. The sit-downers sought the same distinctively legal capabilities for their courts as were claimed by the official courts. The Cadillac strikers elected a worker who had studied law to be their prosecutor and chose for their judge the "oldest sit-downer, a venerable Scot of 62 combining a ready wit and much dignity." At Dodge Main, an especially skilled departmental court was called upon to try a complicated case that the main court could not handle. After the case "was adjusted satisfactorily to all," the departmental court offered to "gladly assist any department which has no court or which might have a case that is too complicated to try." In at least one plant, juries composed of workers determined guilt or innocence.³⁷	34
At the sentencing stage, kangaroo courts made an effort to fit the punishment to the crime. Dereliction of duty would be punished with double duty; failure to obey sanitary rules brought "a big clean up job for the culprit." A minor technical infraction might lead to a joke sentence, like making a speech to the assembled body. Interference with the legal process brought prompt punishment. At Hudson two men were sentenced to four hours in the Brig and morning K.P. for "intimidating complaining witnesses against them." Three strikers in Fisher Body No. 2 who failed to carry out their sentences were convicted of contempt of court and lashed with the judge's belt. The capital punishment of the sit-down community was expulsion from the plant.³⁸	35
On the whole, the strikers' legal order appears to have been effective. "The most astonishing feeling you get in the sit-down plants is that of ORDER," enthused one striker. "The plant has been re-administrated." Even hostile observers confirmed that the strikers maintained orderly, smoothly functioning communities in the plants.³⁹ Officials from the Michigan State Department of Health inspected the Flint factories three times and commended the sit-downers on their condition. Breaches did occur; despite strenuous efforts to prevent sabotage, workers did inflict some damage on company property, including the "mutilating" of some car bodies in Fisher Body No. 1. However, the most widely publicized instance of alleged property destruction turned out to be false. According to repeated reports in the Detroit News, workers occupying the Newton Packing Company turned off the freezers, allowing $170,000 worth of frozen meat to spoil. After the strikers were evicted by police, however, it was revealed that they had actually preserved the meat in good condition, a fact that received no publicity.⁴⁰	36

Confronting Official Law: Everything Hinges on the Hinges
In the auto parts sit-downs, workers had openly defied management orders to depart the plants. And on one occasion, they had defeated management attempts to infiltrate foremen and nonstriking workers into an occupied factory.⁴¹ It remained to be seen, however, whether they would adopt an equally defiant stance toward legally constituted public authorities.	37
The first test came not in the automobile or rubber industries, but at the Gordon Baking Company in Detroit. Workers occupied the plant in early December 1936 after management refused to negotiate with their union. The company obtained a court order of eviction, but the strikers repulsed the ensuing attack by constables and company guards armed with tear gas. From this experience, the Detroit Labor News, organ of the Wayne County Federation of Labor, drew the lesson that henceforth sit-down strikers "must prepare themselves to repel any assault upon them," including arming themselves "with tear gas and guns to protect their lives and persons."⁴²	38
The next confrontation dwarfed the Gordon Bakery fracas in scale, intensity, and historical significance. On January 11, 1937, police battled strikers for several hours at Flint Fisher Body No. 2 before retiring from the field. The police used firearms and tear gas against the strikers, who retaliated by dousing the officers with a fire hose and bombarding them with a variety of projectiles including two-pound automobile door hinges. Fourteen strikers and supporters were wounded, mostly by gunshot, and eleven officers including Sheriff Wolcott suffered injuries, mostly head wounds from hurled objects.⁴³	39
This struggle, dubbed "The Battle of the Running Bulls" or "Bulls Run" (the Flint police being the "Bulls") by the UAW, served notice that many sit-down strikers were willing to risk their lives to defend occupied plants and prevent production. They made no pretense of complying with principles of nonviolence. As Victor Reuther quipped, "everything hinges on the hinges."⁴⁴ On the other hand, the strikers also declined the Detroit Labor News's invitation to take up firearms. Their implicit rules of engagement—applied with impressive consistency in sit-downs across the country—permitted only the use of non-lethal force in defense against attacks by police or vigilantes on the occupied facilities.	40
As the sit-downs burgeoned in frequency, scope, and duration, the legitimacy of the tactic came under increasing fire. The General Motors Corporation placed this issue at the center of its strategy. It flatly refused to negotiate with the union until the workers vacated its plants. In taking this stand, GM claimed to be fighting for the rights of every car manufacturer, business, and even homeowner, for the sit-down was "striking at the very heart of the right of possession of private property."⁴⁵ While employers swiftly united around this position, workers and unions struggled among themselves over the issue.	41

II. Split in the House of Labor
On New Year's Eve, the second night of the Fisher Body sit-downs, John L. Lewis delivered a national radio address that set forth the CIO's agenda for the coming year, an agenda in which law and legal institutions played central roles. Claiming to speak "for the millions of workers exploited by American industry," he promised that 1937 would "witness an unparalleled growth in the numerical strength of labor in the heretofore unorganized industries and the definite achievement of modern collective bargaining on a wide front." This growth would be attained despite the illegal efforts of corporate employers "to withhold the rights of a free people." Lewis left no doubt that in the interpretation of these rights, the labor movement would defer neither to the legal profession nor to the Supreme Court itself. He reserved special contempt for "high-powered corporation lawyers" who "cloaked" the employers' labor spying and stockpiling of munitions while maintaining that the Wagner Act was unconstitutional. In answer to the lawyers' constitutional contention, he called upon Congress to "brush aside" the Supreme Court.	42
Although Lewis's broadcast was triggered by the Flint sit-downs, the tactic itself occupied only one sentence in an oration that went on for twenty-five paragraphs. "The sit-down strike," he asserted, "is the fruit of mismanagement and bad policy towards labor," namely the refusal "to follow modern labor practice, or to obey the law of the land."⁴⁶ Thus, Lewis blamed employers for the sit-downs, but refrained from challenging their contention that the tactic was illegal.	43
Lewis's reticence reflected deep ambivalence about sit-downs and factory occupations within the labor movement. As the question of legality approached a resolution, unionists would divide into three distinct camps, each corresponding to a broader vision of labor's role in workplace lawmaking. Because each of these visions assigned lawmaking functions to specified institutions, and because each was intended to become operational immediately (without waiting for official recognition by corporations or the state), I call them "constitutions." The first, labor's progressive constitution, treated the sit-down as an unsavory but useful weapon in the struggle for collective bargaining, a form of joint employer-union lawmaking. The second, labor's corporate constitution, actively opposed it as an assault on the older tradition of unilateral craft union lawmaking. The third, labor's freedom constitution, proclaimed and justified a new fundamental right to stage sit-down strikes as a means of enforcing worker-made laws as well as workers' interpretations of official laws.	44

Labor's Progressive Constitution: The Sit-Down as the Lesser of Two Evils
With few exceptions, the top leaders of the CIO unions joined John L. Lewis in portraying the sit-down as a regrettable but understandable form of worker protest that would disappear once employers accepted the modern regime of collective bargaining established by the Wagner Act. Writing during the rash of sit-downs in Akron in the spring of 1936, President Sherman Dalrymple of the Rubber Workers adopted the pose of a detached observer analyzing "the real reasons and underlying causes" of a phenomenon for which he had no responsibility. "Sit-downs do not occur in Plants where true collective bargaining exists," he asserted and predicted that "the only way these sit-downs can be avoided in the future is through the proper application of all the rules of true collective bargaining in a spirit of fair play." Other CIO officials followed suit, blaming employers for the sit-down tactic, but stopping short of defending its legality or morality.⁴⁷ CIO-style unionism was promoted as a form of insurance against sit-downs. "A C.I.O. contract is adequate protection," promised John L. Lewis, "against sit-downs, lie-downs, or any other kind of strike."⁴⁸	45
This position reflected the CIO leaders' faith in government-sponsored collective bargaining, a faith they shared with progressive labor reformers. Lewis and Hillman were happy to use the factory occupations as a battering ram, but neither the sit-down nor the lawmaking from below that it sustained had any place in their long-run plans. They promoted joint employer-union lawmaking as a replacement for—not a supplement to—unilateral worker lawmaking. Lewis praised the Flint strikers for "carrying through one of the most heroic battles that has ever been undertaken by strikers in an industrial dispute," but refused to speak on the merits of their tactic. During the period of the sit-down strikes, he personally addressed only one audience of sit-downers, and that was for the purpose of urging them to accept an agreement and refrain from further sit-downs.⁴⁹ Sidney Hillman, who had briefly called for open defiance of the courts after the Supreme Court struck down the National Industrial Recovery Act, was now too busy fostering close relations with the Roosevelt administration to comment on the sit-downs. "Let those who are raising the hue and cry against 'sit-in strikes,'" summed up CIO Secretary Charles P. Howard, "recognize that of two evils passive resistance is the lesser."⁵⁰	46

Labor's Corporate Constitution: Sit-Downs as Trespass on Union Property
While CIO leaders assessed the sit-down in light of its impact on joint employer-union lawmaking, their counterparts in the American Federation of Labor had different concerns in mind. Like the CIO, the AFL promoted collective bargaining as the centerpiece of the industrial order. Unlike the CIO, however, the AFL sought to preserve a continuing role for unilateral labor lawmaking, and it was this consideration that would ultimately shape the Federation's position on the sit-down.	47
At first, the conservative craft unionists who dominated the AFL greeted the advent of the sit-down tactic with pragmatic—not moral or legal—concerns in mind. When the rubber workers began experimenting with the tactic, their union was affiliated with the AFL, so that the organizing gains won through sit-downs redounded to the benefit of the Federation. Accordingly, the AFL offered to send its general counsel, Charlton Ogburn, to Akron to assist in the defense of sit-down strikers charged with rioting. And in August 1936, the American Federationist reported favorably on the sit-down wave in France and concluded that the tactic was "nothing other than the due answer of the masses of workmen to the oppression and persecution suffered by them during the last few years."⁵¹	48
It was not long, however, before the issue of sit-downs became entangled with the question of craft versus industrial unionism, an issue that most craft unionists treated as one of formal legality. The AFL considered itself to be the House of Labor, lodging all of the legitimate labor organizations of the United States. The Federation issued each constituent organization a charter specifying its jurisdiction. Once a union entity had been granted an AFL charter, it could use the charter for whatever purposes it wished. The jurisdictional entitlement remained fully valid even if the owning union made no effort to organize the workers, and even if the workers themselves preferred to join a different union.⁵²	49
Nearly all of the AFL's charters were framed on trade or craft rather than industrial lines. In the auto plants, machinists fell under the jurisdiction of the Machinists' Union, electricians under the Electrical Workers' Union, and so forth, leaving the UAW with the semi- and unskilled remainder. Thus, the GM sit-downers, with their demand that the UAW be recognized as the exclusive representative for all trades, were in flagrant violation of AFL law. John P. Frey, leading AFL legalist and president of the AFL Metal Trades Council, promptly wired GM to convey the craft unions' "resentment towards any proposition which would give to the Automobile Workers the right to take away the [AFL] Union's prerogative to represent its own people."⁵³	50
To the CIO and its supporters, the notion that a craft union could experience "resentment" over intrusions on its "prerogative to represent its own people" was property-rights thinking run amuck. "The idea that certain jobs belong to them underlies the argument of many craft stand-patters," charged one CIO pamphlet. "They say that they have a right to wage-earners who do work over which they claim jurisdiction, some even talking of their property rights." Responding to AFL charges of "trespassing," the CIO's newspaper editorialized: "Millions upon millions of unorganized workers, parceled out before they were born, or before ever their industries came into existence in some cases, between craft unions of which they have never heard and which have never attempted to organize them, may well pray to be subjected to such 'trespassing.'" Most historians have endorsed the CIO view on the AFL unions' claims of entitlement. "Why a movement rooted as the AFL was in a narrow and particularistic section of the American working class should have developed so abiding a sense of exclusive legitimacy remains," summed up David Brody, "one of the great mysteries of American labor history."⁵⁴	51
The solution to this mystery lies in the fact that the AFL's jurisdictional law arose out of an earlier era when—far from a particularistic obstruction to organization—it was part of an ambitious plan for the creation of a comprehensive order of labor from the bottom up. As Samuel Gompers put it, workers could challenge "the superior forces of united capital" only by joining "all national and international unions in one grand federation, in which each and all trade organizations would be as distinct as the billows, yet one as the sea."⁵⁵ The components of this federation were to emerge not from top-down campaigns by the Federation, but from the self-organization of workers. When the craft workers in a particular trade formed a group, the Federation would provide assistance and—once the new organization was ready—bring it into the House of Labor as the exclusive representative of the craft. As self-government spread throughout the trades, the Federation would become—or so Gompers promised—"the germ of a future state." The AFL Executive Council explained that "by the organization of the workers upon the basis of their trades and callings and the Federation of the various unions in a grand universal union, with the autonomy of each guaranteed by all, will be found the practical realization of aspiration voiced by our lamented President Abraham Lincoln in the memorable sentence—'The Government of the people, by the people, for the people.'"⁵⁶	52
Steeped in this tradition, Frey saw the CIO's violation of AFL law—not the AFL's disregard of industrial workers' aspirations—as a blow against democracy. The CIO unions were in rebellion against policies "adopted by majority vote of the duly accredited delegates" at the AFL convention, the highest authority of the House of Labor. To Frey, the question of industrial versus craft unionism had "nothing to do with the issue" in the CIO expulsions. Rather, the sole question was whether the CIO and its constituent unions were dual organizations engaged in "organized insurrection" against the policies of the AFL "as they are contained in its constitution, and as they have been declared by conventions of the American Federation of Labor."⁵⁷	53
By early February, Frey had come to see the sit-down tactic as an integral aspect of the CIO's insurrection. With the GM strikers still occupying the plants, he condemned the sit-down as a ploy of "militant minorities" that was "deliberately intended to destroy self-government by trade unions." A few weeks later, the AFL Executive Committee ordered an investigation of the tactic and scheduled a discussion for May. As new sit-down strikes proliferated, however, the AFL leadership could not wait to express a position. In late March, Green repudiated the "illegal" sit-down tactic on the ground that the public disapproved and negative public reaction would eventually lead to repressive legislation affecting not only the sit-down, but also the core rights to strike and picket.⁵⁸	54
Green's statement had little effect on the ground. AFL unions continued to engage in sit-down strikes. During the week following Green's statement, five out of nine sit-downs commenced in Detroit were backed by AFL unions. When Green suggested that Edward Flore, president of the Hotel and Restaurant Workers' Union, should discipline his Detroit organization for staging sit-downs, Flore instead replied "'God bless 'em and full speed ahead.'" The Wayne County (Detroit) Federation of Labor, under the leadership of Frank Martel, a socialist typographer, continued to support the sit-down strikers.⁵⁹	55
While the AFL leaders' opposition had little apparent effect on worker activists, it did contribute to a growing movement for government intervention to quell the sit-downs. Sit-down opponents quoted the AFL leaders to show that "American" unionists—as opposed to the "Communist" sit-downers—rejected the tactic. They escalated their campaign for government intervention. Chrysler bought a full-page advertisement condemning the capture of its plants as "a form of revolution." The Detroit News editorialized on page one that the "majestic law has been slapped in the face, knocked down and trampled on long enough!" Several days later, the front page featured a mug shot of a Retail Clerks organizer who had been arrested (but not charged) for passing a fraudulent check seven years before. Soon, mug-shots and police records of union organizers became a regular feature of newspaper coverage. Banner headlines reported the arrests of fifteen "Labor Hoodlums," all but one of whom were released a few days later without charge. A Gallup poll reported that most Americans favored outlawing the sit-down, with the principal reason being its nature as an illegal seizure of employer property.⁶⁰	56
The burgeoning law-and-order drive confronted union leaders with a difficult problem. Thus far, CIO officials had avoided taking a clear position on the legality of the sit-down. Fearing that an open endorsement of the tactic would anger both employers and the public, they tried to capitalize on sit-downs to win union recognition without accepting responsibility for the tactic. Now, however, the law-and-order campaign threatened to unleash the National Guard against the sit-downers. In this crisis, UAW President Homer Martin took the lead in asserting and justifying the existence of a legal right to stage a sit-down strike.	57

Labor's Freedom Constitution: The Right to Stage a Sit-Down Strike
Although he presided over the UAW at a time of historic victories, Homer Martin never won a spot in the pantheon of labor heroes. Historians have painted a remarkably uniform portrait of a powerful orator who lacked any capacity for administration or steady leadership. "He spoke with other worldly fervor; his language was colored by Biblical phrases," wrote B. J. Widick, an organizer with the Rubber Workers. "He made men feel that in organizing a union they were going forth to battle for righteousness and the word of God." But even Benjamin Stolberg, an admirer, joined Widick in portraying him as "a poor administrator" prone to "impulsive" actions and "injudicious" statements. In most accounts, the administrative failings overshadow the inspirational oratory: Martin wanders off on speaking tours while others do the hard work of union-building and collective bargaining.⁶¹ In the history of the sit-down strikes, however, Martin's oratory looms large; he was the only union leader of national stature to engage in a sustained, public defense of the right to stage a sit-down strike. The phenomenal appeal of Martin's speeches to local union activists suggests that he was playing the classic role of the charismatic leader: giving public voice to the hitherto suppressed views of his disempowered constituents. By contrast, John L. Lewis—the only other contemporary labor leader with rhetorical capabilities on Martin's level—systematically withheld his voice from workers engaged in struggle so that he could present himself to employers and government officials as a responsible intermediary.	58
As described by one reporter, Martin delivered his defense of the sit-down "in thunderous tones," resorting frequently to backwoods phrases.⁶² He drew his main themes from the narrative tradition of labor's freedom constitution, which cast ordinary working people as the agents of their own emancipation from industrial slavery. "When I come into a place like Pontiac and find a great, thriving union with all of its various phases of activity," he declared, "I feel a whole lot like Lincoln must have felt when he went into some of the places and found an emancipated group of slaves, living in the same territory as formerly, but under much different conditions."⁶³	59
By the time of the showdown in Detroit, Martin had pieced together a multi-pronged case for the right to stage a sit-down strike. He did not invent the arguments; rather, he wove together justifications developed by labor activists and a few legal intellectuals. On March 22, Martin wrote Governor Murphy an open letter urging him not to deploy troops against the Chrysler strikers. In addition to stating the union's position on the merits of the dispute with Chrysler, Martin's letter succinctly put forth the three main elements of the case for the right to stage a sit-down strike.	60
The effective right to strike. "First, it is our contention that the sit-down strike as such is a strike intended to stop production," wrote Martin. "The stoppage of production through strike has been recognized for years as legal in the United States." Here, Martin continued the labor movement's struggle to transform the legally recognized right to strike—a narrowly circumscribed right of individual workers to combine in withholding labor—into an effective right to veto production. As A. F. Whitney of the Railroad Trainmen explained, the notion that employers were entitled to operate during strikes led inevitably to the "absurd and futile proposition that a working man's right to strike means nothing more than his right to give up his job to a 'scab.'" On this view, there was no need to formulate a new right to stage a sit-down strike. "If there is any validity in strikes at all," reasoned Martin, "the sit-down is perfectly legal."⁶⁴	61
Martin did not bother to specify a legal source for the right to strike, but his narrative of freedom and slavery pointed toward the Thirteenth Amendment's prohibition on slavery and involuntary servitude—the traditional source for labor's claimed constitutional right to strike. Goodyear Committeeman E. L. Howard made this connection explicit, claiming that the freedom to sit down was "my constitutional right, that no man shall be held in slavery or against his will."⁶⁵ Most worker activists simply assumed that there was a right to strike and focused their argument on extending it to cover the sit-down.	62
Why was the sit-down necessary to make the right to strike effective? Because a strike could succeed only by stopping production, and the only other way for unskilled workers—who could easily be replaced—to halt production was the mass picket line, which was too vulnerable to suppression. "Should a worker leave his job behind and depart from a plant and his skill is not such that his absence stops production," explained one union journal, "then the corporation brings in guards, strike-breakers, poison gas and machine guns."⁶⁶ With the picket line broken, the "strikers are just men out of jobs" and the "strike staggers on awhile, collapses and the union dies," complained the Summit County Labor News. "Out of this fact has grown the sit-down strike." Far from a novel and radical tactic, then, the sit-down was an incremental response to changed conditions—"merely the transfer of the picket line into the plant."⁶⁷	63
Just as the sit-down was nothing more than an updated version of old tactics, so was the employers' property argument against it merely a new iteration of old ideas. "[T]he same argument has been used against OUTSIDE PICKETING also," observed the Flint Auto Worker, "and has frequently been given as an excuse for the issuance of strike-breaking injunctions!" Unionists suspected that employers opposed the sit-down not because of some special affront to their property rights, but because "the strikes were so effective and they were unable to operate their plants with strike-breakers." Indeed, if property were the real concern, then employers "should feel grateful for the technique of the sit-down strike [because] the worker is protecting his job and consequently will protect the appliances that make that job possible." As for the charge of sit-down violence, it made no sense in light of the alternative. "Society owes it to itself to bring before its eyes in sharp contrast," urged CIO organizer Leo Krzycki, the "bitter, bloody conflict" on picket lines in the coal fields and around the steel mills compared to the automobile sit-downs, "where no property has been damaged and no lives have been lost."⁶⁸	64
As the sit-down controversy escalated, it became apparent that unionists could not derail the employers' property rights argument merely by downplaying it. Politicians, the daily press, and other participants in public debate increasingly accepted the employers' claim that the sit-down constituted an illegal trespass. In his second argument, Martin embraced the concept of property and turned it against the employers.	65
The workers' communal property right to sit down. Martin wrote Murphy that the "right to strike involves the property right of the worker's job, which is, in our opinion, the most vital property right in America." He predicted that courts and legislatures would soon recognize the right of workers to defend this property right by occupying the job site. This argument reflected the traditional strikers' view that people who worked during strikes were "stealing" their jobs.⁶⁹ After visiting Flint, New York Times reporter Louis Stark joined other observers in reporting a hazily defined but deeply embedded property rights consciousness among the workers: "Talks with the sit-down strikers made it clear to me that they felt they had a property in their jobs. They did not use legal terms in giving expression to their views but their meaning was unmistakable. 'Our hides are wrapped around those machines,' was the way one man in the Fisher Body plant expressed it."⁷⁰	66
At the same time that they claimed a "property" right to sit down, however, unionists argued that "human rights" should take precedence over property rights. "Clearly, the issue involved in this whole controversy," declared Martin, "is whether or not pure property and profit rights shall supersede and preclude the consideration of human rights," namely "the inalienable rights of all workers, to life, liberty and the pursuit of happiness." Angrily responding to the Chrysler injunction, the Dodge Main News roared: "'Plaintiff's valuable property rights!!!—The United Auto Workers say, 'HUMAN RIGHTS OVER PROPERTY RIGHTS!!!'"⁷¹	67
The New York Times pointedly observed that the property rights justification for the sit-down was "most aggressively asserted by precisely those persons who used to regret the very existence of 'property rights as opposed to human rights.'" But to unionists, there was no inconsistency in claiming property rights while simultaneously trumpeting the superiority of human rights over property rights. The worker's property right to his job was a "human property right," explained A. F. Whitney. "Unfortunately, in the past, the resources of the state have been too largely employed to protect, as against human property rights, an entirely different kind of property right—those of the so-called 'propertied classes.'" Unionists disaggregated the concept of property into distinct functions or origins, some of which had "human" value while others did not. First, unlike corporate property rights, the worker's property right concerned an asset that was essential to human survival. "It's worth more than stocks and bonds and machinery; it's the only right that he has, by which he feeds his family, takes care of his children, provides income to take care of his home," explained Martin. "Anybody who takes his job takes his home and deprives him of his very life." Prefiguring arguments that would later be accepted by courts and legal scholars in other contexts, unionists pointed out that—as a practical matter—a worker's job was his most valuable asset: "Is it any wonder then that the worker who has no unmortgaged tangible property, who does not own stocks or bonds, and who may have a few household possessions, an insurance policy, or even a small savings account, will figure that his 'job' is his property and his only title to economic income?"⁷²	68
Next, unionists noted that workers, unlike corporate magnates or imported strikebreakers, were immediately and personally connected to the machines that they operated and the jobs they performed. In response to the charge of trespassing, the Punch Press snarled: "SO? THE WORKERS WHO SPEND HALF THEIR LIVES IN THE PLANTS, SWEATING OUT THE PROFIT FOR SLOANS WHO NEVER COME NEAR A SHOP, HAVE NO RIGHT TO BE IN THE SHOPS!" Echoing Hegel and prefiguring modern scholarship on property and personhood, unionists argued that by using the machinery productively, workers earned a property right: "After all, the property may belong to the company, but there is something else inside these plants that the workers have earned by years of sweat and toil–and that is THEIR JOBS!" Moreover, the requirements and the experience of performing his job adapted the worker and his conditions of life to that particular job. "These workers, in the great majority of cases, have spent years in training their hands and minds to their work," observed the United Auto Worker, "and in short, have so arranged their lives in order that the plants and machinery of an employer can yield the owner a profit and a living for themselves."⁷³ This "investment in industry" at a minimum elevated the claims of striking workers over those of imported strikebreakers. "It is the height of absurdity to contend that a worker who may have traveled hundreds of miles in quest of the job, or sustained disfigurement or injury in the course of it, or even contributed a substantial part of his strength and energy to his employers enterprise," inveighed one local union resolution, "has the same status as a mischievous stranger or interloper."⁷⁴	69
While pumping up the property rights of workers, unionists did their best to deflate those of employers. A. F. Whitney found it "astounding" that opponents of the sit-down were analogizing GM's property rights to those of a homeowner. "Mr. Sloan's property right in his own home, which the common law has always held as his castle, is a property right of the highest order of human value," he wrote. Corporate property, on the other hand, could be no one's "castle" because the exclusion of others would render it useless: "His corporation's property rights in the factory have value only as the worker's property right in the job is preserved and respected." This argument shaded into old-style producerism. Sit-down supporters quoted Lincoln on the priority of labor over capital and pointed out that stockholders and bondholders created no value while the workers' labor made their property right the one "which produces wealth and which means more to national prosperity than any other property right in existence."⁷⁵	70
The workers' claimed property right was triggered solely by collective action. Nobody claimed the right to "strike" as an individual and then return to the job. Though framed as a property right, then, it bore little relation to traditional notions of individual property rights. On the contrary, it belonged to the class of "communal rights"—rights "to act together, to engage in activity commonly and most effectively undertaken by groups."⁷⁶	71
The sit-down as statutory and constitutional self-help. Finally, Martin reminded Murphy that the Chrysler workers had occupied their factories only after the company violated the Wagner Act by refusing to recognize and bargain with their union, which—unlike the Flint local two months previously—actually represented a clear majority of the company's employees. Thus, the workers had "used the sit-down method of strike in an effort to establish what was their legal, constitutional and civil right, and to eradicate the impossible working conditions from which they suffered." Here, Martin echoed arguments made by John L. Lewis and other adherents of labor's progressive constitution. Unlike Lewis, however, Martin and other open proponents of the sit-down accepted responsibility for factory occupations and publically defended the right of workers to engage in statutory and constitutional self-help. "You[r] threat of violence would be better directed against violators of the national labor relations act," wrote Chrysler Local 3 to Murphy. "We mean to stay until they observe the law."⁷⁷	72
Despite all these arguments, the few courts that had ruled on the sit-down issue by the time of the Chrysler confrontation had emphatically pronounced the tactic illegal.⁷⁸ In the short run, at least, the fate of the sit-down movement would hinge less on argument than on action.	73

III. Establishing and Shaping the Right to Sit Down
By mid-February 1937, there was a growing gap between official law and social practice. On the 11th, the General Motors strike was settled on terms favorable to the union, triggering an exuberant celebration in Flint. In a speech to the victorious strikers, Socialist Party leader Norman Thomas gloated that despite all the lawyers' talk about the illegality of sit-downs, GM had been forced to abandon its principled commitment not to bargain until after the workers left the plants. GM "signed on the dotted line while you were sitting there," he observed. "It looks as if they have actually recognized the sitdown." One week later, about one hundred sit-down strikers at the Fansteel Metallurgical Corporation in Waukeegan, Illinois, repulsed an attack by one hundred forty police officers after a two-hour battle despite the officers' extensive use of tear gas bombs.⁷⁹ The police had yet to clear an occupied factory against resistance.	74
Despite these successes, the sit-down movement was in a dangerous position. The workers' justifications for the right to sit-down had yet to prevail either in a single court or before the bar of public opinion, leaving them in the position of openly defying the law. Moreover, the sit-down tactic caused problems for unionists as well as corporations. A few sit-downers in a key department could force thousands of their co-workers out on strike. While staving off the police at the factory gates, workers struggled to solve these problems and shape a viable right to sit down.	75

Defiance of Old Traditions, of Legal Restraints, and a Hostile Judiciary
The first problem was how to sustain resistance in open defiance of law. Local union activists turned to history for inspiration. "It was once unlawful to picket," recounted one. "Every right, every liberty, every privilege ... has been won ... by men who dared to defy some law—by men who dared to be 'illegal.'" It was workers like the sit-down strikers who "in defiance of old traditions, of legal restraints and a hostile judiciary, established the right for labor to organize, to strike, to boycott and to picket," and would "yet establish their right to sit down, stand up or roll over, as suits their fancy, in the plants which the brain and brawn and genius of the working class have brought into being." These stories served not only to justify defiance, but also to stiffen workers' resolve. "Destroy fear of jail," the UAW advised its organizers, "by recalling the prison terms of William Penn, John Brown and other famous Americans."⁸⁰	76
Since law was dynamic, disobedience of the law as it existed at any particular moment carried no necessary connotation of disrespect for law. "[I]f we are lawless elements, as you have falsely whined—Then we are such, only, in the progressive sense that we are determined to revolutionize the present law standards of conventions." Workers' rights, including the right to sit down, invariably "must be established outside the courts before they will be recognized within the courts." Official law might deny that a worker had a property right in his job, but "government, management and workers, dealing with a practical problem, act as if he did," and sooner or later the law would come into line with the practice. After factory occupations helped the UAW win contracts with auto makers and parts manufacturers, Flint strike leader Kermit Johnson claimed that the right to sit down had been "already established in the struggle of auto workers during the past year."⁸¹	77

A Recognized Weapon of Last Resort in Industrial Controversy
In the spring of 1937, Johnson's claim did not appear entirely far-fetched. It was true that polling results indicated broad public disapproval of the tactic. But by demonstrating their determination to hold the occupied factories, the strikers had tested the intensity of that sentiment. And according to a poll conducted by Fortune magazine, a large majority of the American people was not prepared to countenance the suppression of sit-down strikes if bloodshed were involved. Even business executives were divided on the question.⁸² This posed a dilemma for the forces of law and order. There was strong public support for action against sit-downers in the abstract, but the only method that could reliably break a determined occupation was violent eviction, and violent eviction ran the risk of bloodshed.	78
It was not necessary, then, for labor's allies to advocate legalizing the sit-down in order to assist in its practical acceptance on the ground. Individual leaders of the ACLU, for example, conceded that the sit-down was a "trespass" on company property. In its organizational activity, however, the union focused solely on protecting sit-downers against ejection. "The Union has constantly opposed any resort to violence and bloodshed to eject 'sit-down' strikers," recounted the annual report for 1936–37, "and has insisted on the processes of negotiation as a means to industrial peace." Also helpful to the strikers was the Lafollette subcommittee of the Committee on Education and Labor of the United States Senate. The subcommittee took no position on the question of legality, but responded to the Flint sit-down by sending investigators to expose the espionage activities of General Motors, thereby undermining efforts to evict the strikers.⁸³	79
As workers repeatedly demonstrated their willingness to risk bodily harm defending occupied plants, some mainstream commentators and government officials began to admit the possibility that the sit-down was destined to become an accepted tactic in the new industrial order. Three prominent legal realists, Dean Leon Green of the Northwestern University School of Law, SEC Chairman James Landis, and Yale Law Professor Abraham Fortas, went the farthest. Green—a Texan who, like Homer Martin, had been trained as a preacher—defended the sit-down as the workers' way of protecting their interest in what he called the "common enterprise" of labor and capital. Landis predicted that the fate of the workers' claimed property right to sit down might depend "on the capacity of our law to devise new concepts and mechanisms to meet the needs out of which this type of economic pressure has been born." Fortas agreed, opining that—in view of the adaptability of law—the sit-down might not be illegal.⁸⁴	80
After months of inveighing against sit-downs, the Republican Akron Beacon Journal suddenly shifted gears and included sit-downs along with strikes and lockouts among the "recognized weapons of last resort in industrial controversy." The problem with the sit-down "epidemic," editorialized the Journal, lay simply in the fact that "none of the sitdowns have been authorized in a regular business meeting" of the union. By early 1937, sit-downs had become so routine and so peaceful in Akron that, according to Daniel Nelson, the residents were no longer "particularly perturbed" at the phenomenon. Even in Detroit, after weeks of broadside attacks on the tactic by Mayor Couzens, Assistant Detroit Corporation Counsel James R. Walsh found himself charged with the task of developing policies to distinguish "legitimate" sit-downs from those that were ploys in a "muscle game."⁸⁵	81
This task would not be easy. "How would such a law define the seizure of property for 'collective bargaining'?" demanded the Detroit News. "What practical limits could it place on the right thus conferred on labor, and on labor alone?" If workers enjoyed a property right in their jobs, as the sit-downers contended, then wasn't it ironic—commented the New York Times—that "it is the sit-down strike, initiated by minorities, which has repeatedly denied employment to the majority of the workers in seized plants."⁸⁶ To the News and Times editors, these were unsolvable problems, raised to demonstrate the impossibility of legalizing the sit-down. Even as they wrote, however, tentative solutions were emerging both as informal summations of practice on the ground and as products of formal union lawmaking and collective bargaining.	82

Democracy Means Majority Rule
The sit-down strike posed difficulties for unionists as well as employers. Because most segments of the mass production process were interconnected, a sit-down in one department could idle other departments whose workers had neither been consulted nor even informed of the protesters' objectives. Moreover, for better or worse, sit-downs organized from below undermined the efforts of union leaders to present an image of respectability to employers and the public. In the summer and fall of 1936, the Goodyear Corporation exposed these problems in a highly successful public relations campaign, threatening to move production and jobs to outlying factories because of Akron's unruly workers. In mid-July, Mayor Schroy declared that the city was "absolutely through with sit-downs," and URW officials began talking about bringing them to an end. At the peak of this counter-offensive, Local 2 passed a resolution calling on "all individuals, groups or departments to present their grievances to our union representatives and continue at work" pending a resolution.⁸⁷	83
But suppression was not the only possible union response to the difficulties posed by sit-downs. Another approach was to take control of the new tactic by legislating rules to enhance its effectiveness and prevent abuse. Even as Local 2 tried to bring wildcat sit-downs under control, it affirmed that the tactic had "proven to be one of the most powerful weapons of organized labor" and proposed that the union legislate on the issue. Every unionist to leave a written record of thoughts on this issue agreed that the key to solving this problem was the imposition of majority control on sit-downs. "Democracy means majority rule, not minority rule," explained UAW Vice President Wyndham Mortimer. "And when a small minority of workers disrupt production by a departmental sit-down, they are in effect determining the welfare of many thousands of their fellow workers who were not consulted."⁸⁸	84
There was disagreement, however, about whether to place the decision at the local or international level. At the URW convention in September 1936 this issue sparked a sharp controversy. Goodyear Local 2 argued that requiring authorization by the International Executive Board "involves too much red tape and undue delay for best results" and therefore proposed "giving the authority to the Executive Board of a Local Union to sanction a sit-down where, in their opinion, it is justified." But URW Vice President Thomas Burns argued forcefully against the entire enterprise of legislating about the sit-down strike. Like John L. Lewis and other CIO leaders, he viewed the sit-down as a public embarrassment. "The amount of adverse publicity we would get over taking any resolution and passing it should be avoided," he argued. E. L. Howard, an influential Goodyear committeeman, responded. What Burns saw as an issue to be swept under the rug, Howard saw as a historic turning point for the labor movement. "The sit-downs today, if properly authorized and supported, are as effective in proportion to a strike as a Thompson machine gun is to an old musket," he charged, "and you don't have the courage to take hold and lead." But the sit-down resolution—already watered down in committee—was defeated by a margin of 35 to 27.⁸⁹	85
The issue also sparked sharp debate in the UAW. At the 1937 convention, local activists complained that the existing requirement of national approval for all strikes involved too much "red tape" and proposed resolutions placing control at the local level. UAW Vice President Wyndham Mortimer agreed that local authorization would solve the problem, but failed to support the resolution. Homer Martin opposed the resolution, arguing that because the union had been called upon to pay large legal fees on behalf of arrested sit-downers, it must be given a veto. He and UAW Secretary-Treasurer George Addes promised that authorization would be promptly granted under the current expedited procedure, which allowed for approval by the president pending board ratification. After these assurances, the existing procedure was retained on a voice vote. In place of the failed proposal for local control, the delegates adopted a resolution endorsing the stay-in strike as "an effective weapon against employers who refuse to recognize the moral and legal rights of the workers to collective bargaining" and as "labor's most effective weapon against the autocracy of industry."⁹⁰	86
Neither the URW nor the UAW, then, enacted national legislation on the specific issue of sit-down strikes. The constitutions of both unions required international approval of all strikes, but these provisions had already proven ineffective in controlling sit-downs. In some areas, local unions stepped into the breach. As we have seen, Goodyear Local 2 passed a resolution barring unauthorized sit-downs. Goodrich Local 5 took a less restrictive approach, requiring that workers notify the local leadership before initiating a sit-down, and that after a sit-down had closed down the entire plant, a local union meeting would be held "to decide whether they shall return to work." Local 155 of the UAW, which had conducted a week-long factory occupation, enacted a shop rule requiring that any workers "desiring to take decisive action" first obtain authorization from the shop stewards' committee and the local union meeting.⁹¹ This legislation addressed only the procedural question of who had to be consulted before staging a sit-down, leaving the scope of the emerging right to be developed in practice.	87

Scope of the Emerging Right
Some limiting principles flowed directly from the justifications advanced in support of the claimed right. If, as unionists argued, the sit-down was merely an exercise of the workers' right to strike, then employers should suffer no more injury than they would in the event of an effective (meaning effective at withholding labor, but not necessarily victorious) traditional strike. Although workers never formally enacted this principle in union law, it was evident in a number of practices and shop rules. First, in contrast to the Italian factory occupations of 1920, American workers never attempted to operate employer facilities for their own gain.⁹² This comported with their claim that sit-down strikes were "merely the transfer of the picket line into the plant." Likewise, sit-downers generally stood ready to evacuate occupied plants on a credible promise by the employer to refrain from re-starting production until collective bargaining was concluded.⁹³ In the meantime, employer property was protected by the promulgation and enforcement of strike rules prohibiting sabotage.	88
The property-rights justification for the sit-down implied an additional limitation. Only the employees of the struck employer could claim a property interest in their jobs. Accordingly, unionists never contested Governor Murphy's charge that a sit-down conducted by outsiders was not a legitimate strike, but a kind of banditry. When the Detroit Police conducted a series of eviction raids against facilities that they charged were occupied by outsiders, unionists disputed only the charge, not the propriety of evicting nonemployees. And when Murphy ordered a food blockade of Flint Chevrolet No. 4, where outsiders made up a significant proportion of the sit-downers, the UAW promptly withdrew all nonemployees from the plant. Had there been a threat of attack, the union might have insisted on the right to invite outsiders in to assist in defense, but Murphy had ordered the National Guard to protect the occupied plants.⁹⁴	89
On the question of defining the acceptable purposes of sit-downs, not all of the three justifications yielded the same answer. If the sit-down were merely an exercise of the right to strike, then the law governing the acceptable purposes of strikes in general would seem to control sit-downs as well. The property-right theory of the sit-down pointed in the same direction and harked back to the labor movement's tradition of voluntarism. "Since labor thus possesses property rights as well as capital and these rights are essentially of a similar nature ...," resolved one UAW local union, "then it certainly ought to follow that the two contestants should be permitted to settle their differences without the intervention by the courts and the armed forces of the state on the side of one of them."⁹⁵ Many unionists, however, renounced the use of the sit-down for ordinary labor disputes and tailored the scope of the claimed right to some form of the self-help justification. Some drew the boundary narrowly to encompass only sit-downs "against an employer who has defied all of the laws set up to protect and aid and equalize the rights of the workers."⁹⁶ Others took a broader view, approving all sit-downs for the purpose of making the regime shift from the individual labor market—which amounted to "industrial slavery" or "autocracy"—to collective bargaining.⁹⁷	90
As long as the constitutionality of the Wagner Act remained doubtful, these differences of opinion had little salience. With the National Labor Relations Board tied up by constitutional challenges, it was clear to unionists that the only way to enforce worker rights was through strike action. Those who supported the sit-down tactic only for self-help purposes still had a stake in its continued viability. But the constitutional issue was moving rapidly toward a resolution, and the sit-down strikers were to have a decisive impact on the outcome.	91

IV. Making Constitutional Law
At the time that GM workers commenced their historic strike, virtually no one expected the Supreme Court to uphold the Wagner Act. Every one of the twenty-four federal judges who had ruled on the issue agreed that the Act could not be applied to manufacturing companies. Lawrence Lucey summed up the prevailing view when he reported with "icy certainty" that the federal government lacked power to regulate labor relations.⁹⁸	92
But workers and unions persistently declared the Act constitutional and proceeded to enforce it through strikes and factory occupations. "Labor demands," thundered John L. Lewis on the second night of the Flint sit-down, "that congress exercise its constitutional powers and brush aside the negative autocracy of the federal judiciary."⁹⁹ On February 5, 1937, President Roosevelt proposed a method for accomplishing this result: packing the Court with new appointees. The CIO promptly endorsed the president's bill as its top legislative priority.¹⁰⁰ In terms of lobbying and political mobilization, however, the movement's activity did not differ in kind from that of other groups. Labor's unique contribution came in the form of the sit-down strikes.	93
Some historians have suggested that the sit-downs influenced the Court to uphold the Wagner Act by educating the Justices about the interstate nature of labor disputes. Richard Cortner argues that the sit-downs, some of which had vast and highly publicized nation-wide effects, might have assisted Chief Justice Charles Evans Hughes in realizing that a strike at Jones & Laughlin steel could, as Hughes put it in his opinion for the Court, exert an "immediate" and even "catastrophic" effect on interstate commerce. In a meticulously researched article, Drew Hansen shows that lawyers for the NLRB emphasized this aspect of the sit-downs in their arguments to the Court. He points out that the sit-downs changed the factual context so that when Hughes wrote that the interstate effects of labor disputes were matters of "common knowledge," he could rest assured that no plausible rebuttal would be forthcoming.¹⁰¹	94
In this section, I suggest that—while the sit-downs undoubtedly eased the path by educating the Justices as Cortner and Hansen claim—it was not education about interstate commerce that induced the Justices to revolutionize the constitutional doctrine of federalism. They were already well aware that strikes in industries classified as "local" under their precedents could wreak havoc with the national economy. Nowhere was this clearer than the coal industry, where a national strike in 1919 (during which Charles Evans Hughes represented the strikers) and threatened national strikes in 1933 and 1934 had triggered sensational news coverage and dire predictions of economic disaster. Yet in 1936, only one year before the Wagner Act cases, Hughes and five other Justices had agreed that the labor provisions of the Guffey Coal Act—modeled after the Wagner Act—violated the commerce clause because the effect of strikes in mining or manufacturing on interstate commerce "however extensive it may be, is secondary and indirect."¹⁰² What had changed since then was not the Justices' understanding of interstate commerce, but the fact that workers had seized hundreds of factories and made it clear that they were willing to risk serious injury or death defending them. This strong commitment on the part of worker activists in turn tested the commitment of public authorities to the defense of corporate property rights. What follows decribes how the various levels and branches of government, from municipalities to the Supreme Court of the United States, responded to the workers' challenge.

Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–1958

JIM POPE

I. An Explosion of Worker Lawmaking: Akron and Detroit, 1935–1937

On the Shop Floor: From Wage Slaves to "Men"

In the Occupied Factories: The Most Astonishing Feeling of Order

Confronting Official Law: Everything Hinges on the Hinges

II. Split in the House of Labor

Labor's Progressive Constitution: The Sit-Down as the Lesser of Two Evils

Labor's Corporate Constitution: Sit-Downs as Trespass on Union Property

Labor's Freedom Constitution: The Right to Stage a Sit-Down Strike

III. Establishing and Shaping the Right to Sit Down

Defiance of Old Traditions, of Legal Restraints, and a Hostile Judiciary

A Recognized Weapon of Last Resort in Industrial Controversy

Democracy Means Majority Rule

Scope of the Emerging Right

IV. Making Constitutional Law