The Black bill, Green and the Blue Eagle: "to bargain collectively through representatives of their own choosing"

The story is told by three of the key actors, Frances Perkins, Leon Keyserling and Rexford Tugwell, of how the Roosevelt administration, in its eagerness to "get rid" of the Black thirty-hour bill and to put something in its replacement to placate labor, incorporated the right to collective bargaining in section 7(a) of the National Industrial Recovery Act.

"When we first came to Washington in 1933," Perkins wrote in her memoir, The Roosevelt I Knew, "the Black bill was already before the Congress. Introduced by Senator Hugo L. Black, it had received support from many parts of the country and from many representatives and senators." Meanwhile, according to Keyserling, the architects of the NRA "would not have included either Section 7(a) or the wage or hour or labor standard provisions. These emerged through a series of haphazard accidents reflecting the desire to get rid of  the Black bill and to put something in to satisfy labor." "It will be remembered," confirmed Tugwell in his memoir, "that one of the reasons why NRA was sponsored by Roosevelt, and why the act was passed in the special session of spring, was the threat of a thirty-hour law being pushed by Senator Hugo Black."

Perkins chronicled the events leading up to the scuttling of the House (Connerly) version of the Black bill. The Senate had already approved the measure by a vote of 53 to 30:

Roosevelt had a problem. He was in favor of limiting the hours of labor for humanitarian and possibly for economic reasons and therefore did not want to oppose the bill. At the same time, he did not feel that it was sound to support it vigorously. But the agitation for the bill was strong. Its proponent insisted that it was a vital step toward licking the depression. I said, "Mr. President, we have to take a position. I'll take the position, but I want to be sure that it is in harmony with your principles and policy." 

Finally we agreed that I should go before the congressional committee holding hearings on the bill. I would propose amendments to guarantee a floor under wages, that is, some kind of minimum wage machinery. I would point out the necessity for possibilities of variation from the strict application of the thirty-hour week. ... 

So I went, with his encouragement, to testify. It was a trying experience. Except for my appearance for the bill providing for the Civilian Conservation Corps, it was my first appearance as a cabinet member before a committee of Congress, and this was a full dress affair. Senator Black apparently wanted it that way. Furthermore the attendance of Miss MacDonald and Mrs. Roosevelt made it a matter of considerable publicity. One could not avoid the ballyhoo of the photographers, the press, the radio, the klieg lights... .

At any rate, Roosevelt was fully committed. From that time on, Congress, the newspapers, the people, knew he was in favor of doing something by law to mitigate the hardships of unemployment by techniques of control of hours, wages, and working conditions. He was committed to the principle but not to this particular program. 

The Black bill did not go through. Instead, the National Industrial Recovery Act was evolved and adapted. Some biographers of Roosevelt have gone so far as to say that Roosevelt betrayed the Black bill in favor of the National Industrial Recovery Act. They regard this as disloyalty to principle. They say that the Senate committee was about to add a paragraph to the bill which would have set up a minimum wage principle. But those of us who were close to the situation could not detect, at any time, that the adoption of a minimum wage clause was in the making. And, as events showed, the Supreme Court in those days would surely have found the Black bill unconstitutional.

Perkins, Ishbel MacDonald and Eleanor Roosevelt descending the steps of the Capitol after attending House Labor Committee hearings on the thirty-hour bill

Perkins left out of her account a crucial detail -- the amendment to the House thirty-hour bill offered by the president of the American Federation of Labor, William Green. Irving Bernstein supplied the missing detail in his 1946 account of "Labor and the Recovery Program." After mentioning that Perkins had not consulted the A.F. of L. about her proposed amendments to the thirty-hour bill, which "did not raise her in its esteem," Bernstein presented the following account of President Green's House Labor Committee testimony:

He did not approve the increase in maximum hours, but accepted it on the ground that it represented the viewpoint of the Labor Department and the Administration. Minimum wages, however, were opposed, except insofar as they applied to women and children. The federation traditionally rejected legal minimum wages, since they tended to become maximum wages and thereby lowered the rates of high-paid workers. The tripartite boards would not act in the interest of labor where collective bargaining did not exist. He urged, therefore, that the bill be amended to guarantee workers "the free exercise of the right to belong to a bona fide labor organization and to collectively bargain for their wages through their own chosen representatives."

The wording of that amendment was not completely original. During World War I, the National War Labor Board had stipulated that "The right of workers to organize in trade unions and to bargain collectively through chosen representatives is recognized and affirmed." In 1919, President Woodrow Wilson convened a "First Industrial Congress," with representatives from business, labor and "the general public" (more businessmen), at which the labor group proposed a resolution, vigorously opposed by business, that affirmed, "The right of wage earners to be represented by representatives of their own choosing in negotiations and adjustments with employers in respect to wages, hours of labor, and relations and conditions of employment."

Perkins gave the following account of the lead up to inclusion of section 7(a) in the NIRA:

At the earliest opportunity I reported to the President that two fairly complete plans were being mapped out — one by Wagner and Jacobstein, the other by Tugwell and Johnson. They both rested on the idea of suspending the effect of the anti-trust laws in return for voluntary agreement by industries for fair competition, minimum wage levels, and maximum hours. I told him that the plans were not very different and both apparently had gotten around constitutional difficulties. The President asked Henry Wallace and me to get the two groups together. That was arranged, and the conferees met daily. When they had completed their draft bill, the President showed it to me. It was novel. It seemed generally satisfactory, but it had some weaknesses. 

"This is very drastic," I said. "The hours of labor and wages are involved, and I think I ought to get the president of the American Federation of Labor to go over it." 

I called in William Green. He liked some of it but said that no provision was made for collective bargaining. He thought the bill could be used as a method for putting the labor unions out of business. General Johnson took the bill and redrafted it, incorporating Section 7(a), which was meant to assure labor's right to collective bargaining. Written in general terms 7(a) was a problem in semantics. It was a set of words to suit labor leaders, William Green in particular. When they discovered later what could be done under 7(a), they called it "labor's Magna Charta."

Charles Coiner's original design for the "Blue Eagle"

The text of Section 7(a) stated as follows:

Employes shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other activities for the purpose of collective bargaining or other mutual aid or protection.

The wording of Section 7 of the 1935 National Labor Relations Act (Wagner Act) retained verbatum the wording of the phrase, "[to] bargain collectively through representatives of their own choosing":

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3)of this title.

Now pay attention to what happened here. Labor bargained for the right to bargain collectively. The A.F. of L. had something -- "support from many parts of the country and from many representatives and senators" for the Black bill -- that William Green exchanged for the inclusion of section 7(a) in the NIRA. Labor owns the right to bargain collectively. They (we) bought it. Nobody gave it to them. Anyone who tries to take that right away is a thief. Got it?