Joseph Warren Madden (January 17, 1890 – February 17, 1972) was an American lawyer, judge, civil servant, and educator. He served as a judge of the United States Court of Claims and was the first Chairman of the National Labor Relations Board (serving from August 27, 1935 to August 26, 1940). He received the Medal of Freedom in 1947.
Education and career
Madden was born in the unincorporated town of Damascus in Waddams Township, Illinois, on January 17, 1890."Judge J. Warren Madden Dead." New York Times. February 19, 1972.Freidel, Frank; Louchheim, Katie; and Dembo, Jonathan, eds. The Making of the New Deal: The Insiders Speak. Reprint ed. Cambridge, Mass.: Harvard University Press, 1984. His father was a somewhat wealthy farmer. He received his Bachelor of Arts degree from the University of Illinois at Urbana–Champaign, and his J.D. degree from the University of Chicago Law School in 1914."Madden a Law Professor." New York Times. August 24, 1935. His legal specialties were domestic relations, property law, and torts, and he had no background in labor law.Bernstein, Irving. The Turbulent Years: A History of the American Worker, 1933-1941. Paperback ed. Boston: Houghton-Mifflin Co., 1970. (Originally published 1969.)
Madden was a Professor of Law at the University of Oklahoma College of Law from 1914 to 1916. He was in private practice in Rockford, Illinois from 1916 to 1917."President Names New Labor Board." New York Times. August 24, 1935. In 1917, he was appointed a Professor of Law at the Ohio State University Moritz College of Law. He was a visiting professor of law at the University of Chicago Law School, Stanford Law School, and Cornell Law School. He briefly served as a special assistant in the office of the United States Attorney General in Washington, D.C., in 1920. A rising star in legal education circles, he also served briefly as Dean of the West Virginia University College of Law before being added to the faculty of the University of Pittsburgh School of Law in 1927. During this time, he served on several federal commissions, including an arbitration panel which settled a strike by 1,800 streetcar conductors in Pittsburgh, Pennsylvania, in 1934. He also served on Pennsylvania Governor Gifford Pinchot's Commission on Special Planning in Industry, the Pittsburgh Regional Labor Board, and a West Virginia state commission which revised and codified that state's public statutes.
NLRB service
In 1935, President Franklin D. Roosevelt named Madden the first Chairman of the newly formed National Labor Relations Board (NLRB). His name had appeared on a list developed by United States Senator Robert F. Wagner and United States Secretary of Labor Frances Perkins. Madden supported the expanded powers of the NLRB; he had observed the operations of the labor clauses of the previously existing National Industrial Relations Act, which were often stymied by employer refusal to negotiate with union representatives who didn't work for them. He was later to say of this period, "It was all very frustrating."Frederick, David C. Rugged Justice: The Ninth Circuit Court of Appeals and the American West, 1891-1941. Raleigh, N.C.: University of California Press, 1994, p. 203.
During his time on the NLRB, Madden was often opposed by the American Federation of Labor (AFL), which believed that Madden was using the National Labor Relations Act (NLRA; the primary federal law governing labor relations in the United States) and the procedures and staff of the NLRB to favor the AFL's primary competitor, the Congress of Industrial Organizations (CIO).Stark, Louis. "Both A.F.L. and C.I.O. Hit at National Labor Board." New York Times. October 14, 1937.Gall, Gilbert J. Pursuing Justice: Lee Pressman, the New Deal, and the CIO. Albany, N.Y.: SUNY Press, 1999. The NLRB and NLRA were under intense pressure from employers, the press, Congressional Republicans, and conservative Democrats.Gross, James A. Reshaping of the National Labor Relations Board: A Study in Economics, Politics, and the Law. Albany, N.Y.: SUNY Press, 1981. From the time it was established in August 1935, management lawyers had challenged the constitutionality of the NLRA and the authority of the NLRB to act. The United States Department of Justice and NLRB legal staff wanted the Supreme Court to rule as quickly as possible on the constitutionality of the NLRA.Schlesinger, Jr., Arthur M. The Age of Roosevelt, Vol. 2: The Coming of the New Deal. Paperback ed. New York: Mariner Books, 2003. (Originally published 1958.) But the Board and Justice Department also realized that the Court's Lochner era legal philosophy made it unlikely that the Court would uphold the Act.Chasse, J. Dennis. "John R. Commons and His Students: The View From the End of the Twentieth Century." In The Institutionalist Tradition in Labor Economics. Dell P. Champlin and Janet T. Knoedler, eds. Armonk, N.Y.: M.E. Sharpe, 2004. Morris, Charles J. The Developing Labor Law: The Board, The Courts, and the National Labor Relations Act. 2d ed. Washington, D.C.: BNA Books, 1983. Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. Paperback ed. New York: Oxford University Press, 1998. ; Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. New ed. Durham, N.C.: Duke University Press, 1993. Subsequently, Madden strove to resolve minor cases before they could become court challenges, and worked to delay appeals as long as possible until the best possible case could be brought to the Court. The Supreme Court eventually upheld the NLRA in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and Madden personally argued the case (along with NLRB General Counsel Charles Fahy and Charles Edward Wyzanski Jr., a special assistant in the office of the United States Solicitor General) before the Court.Stern, Robert L.; Horsky, Charles A.; Morse, David A.; and Freund, Paul A. "The Solicitor General." In The Making of the New Deal: The Insiders Speak. Frank Freidel, Katie Louchheim, and Jonathan Dembo, eds. Reprint ed. Cambridge, Mass.: Harvard University Press, 1984. The ruling marked the Court's abandonment of Lochner era jurisprudence and led to a series of cases upholding New Deal legislation.Hoffer, Peter Charles; Hoffer, William James Hull; and Hull, N.E.H. The Supreme Court: An Essential History. Lawrence, Kan.: University Press of Kansas, 2007.
Madden continued to strategically guide the NLRB's legal efforts to strengthen the courts' view of the NLRA and the Board's actions. Through the efforts of Madden and NLRB General Counsel Charles H. Fahy, the Supreme Court reviewed only 27 cases between August 1935 and March 1941, even though the Board had processed nearly than 5,000 cases since its inception. The Supreme Court enforced the NLRB's rulings in 19 cases without modifying them, enforced them with modification in six more, and denied enforcement in two cases. Additionally, the Board won all 30 injunction and all 16 representation cases before the lower courts, a rate of success unequaled by any other federal agency.
AFL opposition
Madden's stewardship of the NLRB came under increasing attack, however. Section 9(b) of the NLRA authorized the Board to determine the appropriate bargaining unit, but did not specify what standards to use to make that determination. The AFL had long preferred craft unionism, whereby workers were organized into unions on the basis of craft, trade, or skill.Galenson, Walter. The CIO Challenge to the AFL: A History of the American Labor Movement. Cambridge, Mass.: Harvard University Press, 1960. ; Zieger, Robert H. The CIO, 1935-1955. Reprint ed. Chapel Hill, N.C.: University of North Carolina Press, 1997. But other unions sought to organize workers on an industry-wide basis (industrial unionism) to create more powerful unions as well as to take advantage of changes in the workplace that mass production and increases in corporate size were making. The intense philosophical differences led the AFL to eject those organizations advocating industrial unionism, and these unions formed the CIO in November 1936.
AFL opposition to the "Madden Board" grew.Horowitz, David A. America's Political Class Under Fire: The Twentieth Century's Great Culture War. Florence, Ky.: Routledge, 2003. Initially, the NLRB heldGlobe Machine & Stamping Co., 3 NLRB 294 (1937). in 1937 that workers themselves should determine whether they wished to be organized by craft or industry, a compromise acceptable to both the AFL and the CIO.Tomlins, Christopher L. The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960. Reprint ed. New York: Cambridge University Press, 1985. But in 1939, the Board held in American Can Co., 13 NLRB 1252 (1939) that a unit's history of collective bargaining could overrule democratic self-determination. The decision deeply angered the AFL, which had sought to carve out three craft-based unions from the larger bargaining unit. The NLRB also upset the AFL when in 1938 it upheld an industry-wide bargaining unit that favored the CIO-affiliated International Longshore and Warehouse Union over the AFL-affiliated International Longshoremen's Association.Shipowners' Ass'n of the Pacific Coast, 7 NLRB 1002 (1938), enf'd American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 (1940). The AFL, never a strong proponent of the NLRA, had proposed amending the law in early 1936. The "Madden Board's" actions led it to adopt a resolution in October 1937 condemning Madden's administration of the NLRB and the NLRA. It adopted another resolution in October 1938 charging the NLRB and Madden with perverting the law and harboring prejudice against craft unions.
In June 1938, the House Un-American Activities Committee (led by Chairman Martin Dies, Jr.) heard testimony from AFL leader John P. Frey, who accused Madden of staffing the NLRB with communists."Reds Start Count of Allies in Federal Jobs And Push Participation in C.I.O., Frey Says." New York Times. January 10, 1938; "Communists Rule the C.I.O., Frey of A.F.L. Testifies." New York Times. August 14, 1938; "High Federal Aides Are Linked to Reds at House Hearing." New York Times. August 18, 1938; "Green Pushes Fight on 2 NLRB Members." New York Times. August 24, 1938; "Council of A.F.L. Backs Dies Inquiry." New York Times. September 2, 1938; Stark, Louis. "A.F.L. Report Asks NLRB Power Be Cut." New York Times. October 10, 1938.Lambert, Josiah Bartlett. "If the Workers Took A Notion": The Right to Strike and American Political Development. Ithaca, N.Y.: Cornell University Press, 2005. The allegations were true, in at least one case: Nathan Witt, the NLRB's executive secretary and the man to whom Madden had delegated most administrative functions, was a member of the Communist Party of the United States.Halpern, Martin. Unions, Radicals, and Democratic Presidents: Seeking Social Change in the Twentieth Century. Santa Barbara, Calif.: Greenwood Publishing Group, 2003. Witt had extensive influence among the staff, was close to Board Member Edwin S. Smith, and had influenced procedural matters on the Board in favor of the CIO in at least a few instances. Secretary Perkins prevailed upon President Roosevelt to speak with Madden, and the President demanded an impartial administration of the law.